R v FERRAVANT - [2007] SADC 70

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v FERRAVANT
[2007] SADC 70
Reasons for Decision of His Honour Judge Lovell
22 June 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
Application for stay of proceedings when alternative remedies available to the accused – whether District Court has jurisdiction if matter has been “improperly” committed – discussion of general principles of abuse of process – application for stay of proceedings dismissed.
Criminal Law Consolidation Act s 56; Summary Procedure Act 1921 ss5, 22, 22A, 101, 103(3) & 107(3); Magistrates Court Act 1991 ss 3, 42; Criminal Law (Sentencing) Act 1988 s 19(5), referred to.
Craig v South Australia (1995) 184 CLR 163; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Clayton v Ralphs Manos (1987) 45 SASR 347; Barton v The Queen (1980) 147 CLR 75; Jago v The District Court of NSW & Ors (1989) 168 CLR 23; R v Ulman-Naruniec [2003] SASC 437; R v Glynn (2002) 82 SASR 426; Stehbens v Police [2004] SASC 227; R v Draoui [2004] SASC 130, applied.

R v FERRAVANT
[2007] SADC 70
Overview

Where a Magistrate has, allegedly in error, classified an offence as major indictable instead of minor indictable and therefore committed the matter to the District Court for trial, should the Defendant exhaust all other remedies before applying for a permanent stay of proceedings in this Court alleging an abuse of process?
Background
On 28 December 2003 the accused is alleged to have indecently assaulted a girl under the age of 12 years contrary to s 56 of the Criminal Law Consolidation Act. At the time of the alleged offending s 56 stated:
A person who indecently assaults another shall be guilty of an offence and liable to be imprisoned for a term not exceeding eight years or, where the victim was at the time of the commission of the offence under the age of twelve years, for a term not exceeding ten years.
At the time the offence was classified as “minor indictable” pursuant to s 5 of the Summary Procedure Act. On 1 September 2004 an amendment to s 5(3) of the Summary Procedure Act came into force classifying an indecent assault of a person under the age of 12 as a “major indictable” offence (s 5(3)(a)(iii)C of the Summary Procedure Act).
Proceedings in the Magistrates Court
The accused was charged on Information and Summons on 6 January 2005 and the charge was referred to as “minor indictable”. The matter was listed for trial in the Holden Hill Magistrates Court on 13, 14 and 15 December 2005.
On 12 December 2005 the accused was notified that an application would be made by the prosecution to have the matter re-classified as a major indictable offence and the trial adjourned.
As mentioned the information originally stated that the charge faced by the accused was minor indictable. It appears that no election was made by the accused pursuant to s 103(3) of the Summary Procedure Act and the Magistrates Court Rules of Court for a trial in a superior court. Thus the matter was to proceed before the Learned Special Magistrate in the “same way as a charge of a summary offence”. Hence the listing of the matter for trial before the Learned Special Magistrate. After the amendment was allowed the matter had to proceed as a committal and the Learned Special Magistrate was required, pursuant to s 107(3) of the Summary Procedure Act to commit the accused to a superior court.
Sections 22 and 22A of the Summary Procedure Act 1921 (as amended) prescribe the general form of a summons. Section 101 of that Act prescribes that an information relating to an indictable offence may be laid “in accordance with the rules”. Rule 19.08 of the Magistrate Court Rules requires that an information state as to “each charge whether it is a major indictable, minor indictable or summary offence”.
On 28 December 2003 the Learned Special Magistrate heard legal argument regarding the proposed amendment. It was argued by the accused that the amending Act affected substantive rights and therefore could not operate retrospectively. The prosecution argued that the amendment was procedural in nature and therefore operated generally. The Learned Special Magistrate allowed the amendment and the matter then proceeded by committal on 18 May 2004; at the end of those proceedings the accused was then committed to stand trial in the District Court.
The matter has then had a somewhat tortured history. The accused was arraigned in the District Court on 17 July 2006 where he pleaded not guilty and the matter was referred to the directions hearing list. There was much discussion at a number of the hearings about the appropriate procedure to be adopted by the accused in order to challenge the decision by the Learned Magistrate. Eventually the accused decided to issue an application for a stay of proceedings in this court.
On 29 September 2006 an Application to either strike out the information or in the alternative stay the proceedings in this court was filed on behalf of the accused. The matter was argued before me on 11 May 2007 and 29 May 2007.
What Remedies Are Available
The accused applied for the information to be struck out or for a permanent stay of proceedings on the general ground this Court lacked jurisdiction. Before turning to the question of the Application to this court it is important to ascertain what, if any, alternative remedies were available to the accused.
The grounds of the Application are as follows:
APPLICATION
RUSSELL JOSEPH FERRAVANT of 16 Arunta Street Greenacres in the State of South Australia hereby applies to the Court seeking the making of the following orders:-
1. The Information of the Director of Public Prosecutions dated 17^th day of July 2006 be struck out and/or the charge of indecent assault be permanently stayed on the ground that this Honourable Court has no jurisdiction to hear the matter as:-
1.1The said charge has been improperly classified as Major Indictable when it should in fact be classified as Minor Indictable pursuant to Section 5 of the Summary Procedure Act, 1921;
1.2The Accused never elected for trial by Jury on the original Information and Summons dated the 6th day of January 2005 laid in the Holden Hill Magistrates Court;
1.3The Accused was improperly committed by the Holden Hill Magistrates Court to stand trial in this Honourable Court.
It can be seen from the grounds articulated that the accused submits that the Learned Magistrate’s decision to allow the amendment sought by the prosecution to make this matter a major indictable offence was an “error”. As a result the accused was unable to elect for trial in the Magistrates Court and further he was then improperly committed to this Court.
If the prosecution wished the matter to proceed before the Learned Special Magistrate as a major indictable offence it was necessary for the prosecution to seek to amend the information. The accused is therefore challenging the decision made by the Learned Special Magistrate to allow the amendment; it is also arguable that what is being challenged is the decision to commit the accused for trial in the District Court.
The accused submitted that the Learned Special Magistrate erred in deciding that the amending Act was procedural in nature. That being so that the Learned Special Magistrate acted beyond his powers in granting the amendment as, although he had a general power to amend, in the circumstances of this case it was beyond his power to amend the charge making it “major indictable”. This argument suggests that the Learned Special Magistrate acted without jurisdiction; it could be argued that it was an error made within his jurisdiction. It can be difficult to distinguish between a jurisdictional error and an error within jurisdiction.
In Craig v South Australia the High Court in a joint judgment of Brennan, Deane, Toohey, Gaudron and McHugh JJ stated:
An inferior Court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limit of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior Court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.[1]
[1] (1995) 184 CLR 163 at 177
In Re Refugee Review Tribunal; Ex parte Aala Hayne J stated:
In deciding whether writs of prohibition or certiorari (and analogous forms of relief) should be granted, a distinction is drawn between jurisdictional error and error within jurisdiction. This Court has not accepted that this distinction should be discarded (Craig v South Australia. As was noted in Craig v South Australia (at 177-8), that distinction may be difficult to draw. The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.[2]
[2] (2000) 204 CLR 82 at 141; see also Commissioner of Taxation v Tang [2006] SASC 252.
It does not matter for the purpose of this argument which side of the “bright line” the alleged error falls. If the matter is one that can be categorised as an error within jurisdiction rather than one of jurisdictional error judicial review proceedings may still be the appropriate remedy.
A jurisdictional error is certainly amenable to judicial review. In criminal matters before the Magistrates Court there is a right of appeal but not in relation to committals. If it is an error within jurisdiction there is no right of appeal under s 42 of the Magistrates Court Act. Section 42 of the Magistrates Court Act states (relevantly):
42—Appeals
(1)A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).
Pursuant to s 3 of the Act “judgment” means a judgment, order or decision and includes an interlocutory judgment or order.
Thus no right of appeal pursuant to s 42 arises if an error within jurisdiction is made during committal proceedings. Absent a right of appeal judicial review proceedings would be available.
It could be argued that the “error” occurred during the trial of the minor indictable offence. Thus it did not occur during the committal; the error turned the matter into a committal. That does not alter my view as s 42 of the Magistrates Court Act would then provide the appropriate appeal mechanism.
Committal proceedings generally are amenable to judicial review.[3] The appropriate procedure here was for the accused to seek to judicially review the decision of the Learned Special Magistrate or if applicable appeal pursuant to s 42 of the Magistrates Court Act. If the Learned Special Magistrate has acted beyond his power or has incorrectly decided something, the Supreme Court has the power to quash and/or remit the matter back to the Magistrates Court. The District Court has no such power.
[3] Clayton v Ralphs and Manos (1987) 45 SASR 347
The Application
The matter as argued before me eventually took a different form to the grounds set out in the Application. The DPP were content to have the Application dealt with as argued. However the original grounds as stated demonstrate the difficulties facing the accused on this matter.
As can be seen from the grounds the stay of proceedings was sought on the basis that this Court had no jurisdiction. That raises immediately the issue of whether judicial review proceedings were the appropriate remedy. During the course of argument it was also contended that, even if this Court had jurisdiction, the matter should be stayed as it would be an abuse of process for the case to proceed where the Magistrate erred in classifying the offence and therefore being constrained to commit the matter to the District Court.
It could not be argued that this Court does not have jurisdiction to hear this case. Whether it is a minor or major indictable offence this Court has jurisdiction. Indeed the Director of Public Prosecutions could have laid an ex officio information whether the Learned Special Magistrate had decided to commit the matter to the District Criminal Court or not. The discretion to place an accused person on trial rests with the Director of Public Prosecutions. A decision to commit or not has no binding force or effect. His decision is absolute and cannot be controlled by the Courts.[4] It is once the information is laid that the Court has power to prevent an abuse of its processes. It may be that if an ex officio indictment was laid without committal that may lead to consideration of a stay of proceedings.[5]
[4] Barton v The Queen (1980) 147 CLR 75 at pp 88-94; Clayton v Ralphs and Manos (1987) 45 SASR 347 at p365
[5] R v Bunting & Ors (No 2) [2003] SASC 250
It was argued that the abuse of process here was that the offence was actually “minor indictable” and the accused had been denied the right to elect to have his trial heard in the Magistrates Court. To establish the assertion that the offence was “minor indictable” this Court was asked to consider the identical question asked of the Learned Special Magistrate namely whether the amending provisions of the Summary Procedure Act were substantive or procedural in nature. If, so the submissions ran, the amending act was substantive in nature, the Learned Special Magistrate erred in committing the matter to the District Court and the error was such that this Court should stay these proceedings.
In effect the District Court was being asked to stay proceedings in a situation where the Court had no power to judicially review the Learned Special Magistrate’s decision to commit to this Court.
The Court has an inherent discretionary power to stay proceedings to avoid an abuse of its processes, but this power will only be exercised in an extreme case or in the most exceptional of circumstances.[6] Mason CJ stated in Jago (at p 482):
The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor ... that the Court processes are being employed for ulterior purposes or in such a way ... as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognized purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court.
[6] Jago v The District Court of NSW & Ors (1989) 168 CLR 23
He went on to say:
To justify a permanent stay of proceedings, there must be a fundamental defect which goes to the root of the trial “of such a nature that nothing the trial judge can do in the conduct of the trial can relieve against its unfair consequences”: Barton v The Queen (1980) 147 CLR 75 at 111 per Wilson J.
The general principles relating to stay applications were usefully distilled by Sulan J in R v Ulman-Naruniec.[7] His Honour at para 205 stated:
Although the limits of conduct which may amount to an abuse of process to justify a permanent stay have not been defined, before the power is exercised it is, in my opinion, necessary to establish:
1.That there is prejudice caused by the abuse of process.
2.That the prejudice caused will be perpetuated or aggravated through the conduct of the trial so as to result in the accused not receiving a fair trail.
3.That there is no remedy available which will alleviate the prejudice.
4.That the unfairness is such that the administration of justice is best served by staying the proceedings, having regard to the overriding interest in the effective prosecution of criminal cases.
[7] [2003] SASC 437
I gratefully adopt His Honour’s summary. It should be noted that the onus of establishing that a stay of proceedings should be granted is on the accused.
I turn to consideration of the third matter mentioned by Sulan J. Before proceedings can be stayed, a court must be satisfied that the continuation of a prosecution would result in an abuse of process. Such a continuation must offend the principles of justice. There must be no other way of remedying the problem. There must be no other available means to bring about a fair trial. An order for a stay is an order of last resort.[8]
[8] R v Glynn (2002) 82 SASR 426 at 438 per Gray J
Here there are potential remedies available to be pursue ie. judicial review or possibly appeal proceedings in the Supreme Court. Indeed it is the more convenient remedy as if the accused is successful with his argument the matter can be remitted to the Magistrates Court and dealt with accordingly. As mentioned the District Court has no power to remit the matter to the Magistrates Court.
In my opinion the Application for a stay of proceedings can and should be dismissed on that ground.
However in the event that I am not correct in stating that other remedies are available, I will turn to consider the other issues relevant to a stay of proceedings. Rather than decide the question of whether the amending Act was substantive or procedural in nature I will assume that the accused’s argument is correct. I will assume (without deciding) that the offence is a minor indictable offence and that the accused has been deprived of his right to have the matter heard and disposed of in the Magistrates Court. I will take the accused’s case at its highest.
Mr Rainford, who appeared for the accused, during the course of his able submissions was unable to point to any specific problem or unfairness in the way the commital was conducted. He was unable to point to any difference between a Magistrates Court trial and a District Court trial other than the question of costs. The accused in this Court, as is his right, has elected for trial by judge alone. He has not been forced to have a trial by jury. The rules of evidence are the same. The elements of the offence are the same. The onus of proof is the same. The District Court has all the necessary powers to hear and determine the information and upon conviction, should that occur, to adequately punish the accused. The maximum penalty is, by operation of s 19(5) of the Criminal Law (Sentencing) Act 1988 (as amended)[9], the same whether it is dealt with by a Magistrate or a District Court judge.
[9] Stehbens v Police [2004] SASC 227

The only difference between a trial in the District Court on a minor indictable offence and a trial before the Magistrates Court is that in some circumstances a magistrate may award costs against the informant should the information be dismissed. The District Court does not have that power. It would be rare for that fact alone to found a stay of proceedings.[10]
[10] R v Draoui [2004] SASC 130
Taking into account all the factors involved in this case it could not be said that the accused would not receive a fair trial; nor could it be said that the administration of justice is best served by staying the proceedings, having regard to the overriding interest in the effective prosecution of criminal cases.
For the reasons set out above I decline to exercise my discretion to order a stay of proceedings.
The Application for a stay of proceedings is dismissed.