Richard James Winen v District Court of South Australia and the Director of Public Prosecutions No. Scciv-03-1301

[2003] SASC 440

RICHARD JAMES WINEN v DISTRICT COURT OF SOUTH AUSTRALIA AND THE DIRECTOR OF PUBLIC PROSECUTIONS
[2003] SASC 440

Application for Judicial Review

1. DEBELLE J           This is an application for judicial review.

2. The application was instituted on 18 September 2003. The applicant then sought orders that:

   1.This Court review a decision of Judge Lunn made in the criminal jurisdiction of the District Court of South Australia when His Honour refused an application by the applicant to quash an information listed for the criminal sessions of the District Court in September 2002.

   2. An order in the nature of prohibition to stay the trial on the information, that is to say, the proceedings before Judge Lunn in the action No. DCCRM-02-913.

   The application was issued well out of time. However, as will be seen, that is not its only defect.

3. The events leading to the application are deposed to in an affidavit sworn by Mr Noblet, the applicant’s solicitor, on 17 April 2003. Despite being sworn on that date the affidavit was not filed until 18 September 2003. Other evidence as to hearings in relation to the information is contained in the affidavit of Mr Williams sworn on 14 October 2003. I set out the relevant facts.

4. By an information in the Magistrates Court dated 25 June 2002, the applicant was charged with the offences of demanding money with menaces contrary to s 160 of the Criminal Law Consolidation Act 1935 (“the Act”) (a minor indictable offence), unlawful imprisonment contrary to the common law (a major indictable offence), assault with intent to rob contrary to s 158 of the Act (a major indictable offence), and damage to property contrary to s 85 of the Act (a summary offence). Ms C L Buczko was charged on the same information with the first two of those offences.

5. The applicant pleaded not guilty. On 16 August 2002 he was committed for trial in the District Court. The applicant was to be arraigned on 23 September 2002. On that day counsel for the applicant was informed that an information had been filed charging the applicant with two counts of common assault contrary to s 39 of the Act, one count of property damage contrary to s 85 of the Act, and one count of demanding with menaces contrary to s 160 of the Act. The last two of those offences had been charged on the information in the Magistrates Court. Thus, the applicant was not charged with a major indictable offence. Instead, he was charged with one minor indictable offence, namely, the offence of demanding money with menaces contrary to s 160 of the Act, and three summary offences.

6. On about 4 October 2002 the applicant applied, pursuant to Rule 8 of the District Court Rules, for an order that the information be permanently stayed as an abuse of process. The application was made on the ground that the applicant had suffered significant prejudice in that his rights to election pursuant to s103(2) of the Summary Procedure Act 1921 were not available to him. The effect of the applicant’s contention was that a person may not be put upon trial in the District Court on an information presented to the court in the name and by the authority of the Director of Public Prosecutions where the information contains a minor indictable offence or a mixture of minor indictable and summary offences but does not contain a major indictable offence and the accused has not elected for trial in a superior court as provided for by s 102(3) and s 103(3) of the Summary Procedure Act.

7. The applicant was to be arraigned on the new information on 4 November 2002 in the District Court. The arraignment was adjourned pending determination of the Rule 8 application.

8. On 13 November 2002 the Rule 8 application came on for hearing before Judge Lunn. The application was adjourned to allow a further application to be made for the information to be quashed. The grounds of the further application essentially were that the information did not comply with s 275(2) of the Act in that it purported to come before the District Court of South Australia without compliance with either or both s 102 and s 103(3) of the Summary Procedure Act.

9. On 22 November 2002 both the application for a stay and the application to quash the information were heard by Judge Lunn. A like application was made on behalf of the co-accused, Ms Buczko. On 20 December 2002 Judge Lunn delivered reasons and dismissed all of the applications. The applicant did not appeal against the order dismissing his applications.

10. On 20 January 2003, on the application of the applicant, Judge Bishop adjourned the proceedings to 3 February 2003 so that the applicant could consider what steps to take in light of the orders of Judge Lunn. On 3 February 2003 the proceedings were further adjourned to 3 March 2003. On 3 March 2003 the applicant was arraigned on the information dated 23 September 2002. He pleaded not guilty. The proceedings were adjourned for a directions hearing on 17 April.

11. On 17 April 2003 Judge Lowrie listed the matter for trial on 22 September 2003. The judge was informed that there was an application for judicial review which was ready to proceed. Despite the assurances to the judge that it was intended to proceed with the application for judicial review, the application had not in fact been instituted. The application was not issued until 18 September 2003.

12. On 12 September 2003 the applicant’s counsel applied for an order removing the matter from the trial list on the ground that the application for judicial review had been lodged. The applicant was not present at the court.  The application was heard by Judge David who adjourned it to 16 September. It will have been noticed that the judge was not told of the correct position. The application had not yet been lodged.

13. On 16 September 2003 the application to take the matter out of the trial list was again heard by Judge David. Counsel for the applicant informed the judge that the application for judicial review had been filed in the Supreme Court. In truth, it had not. Judge David stood the application over to that afternoon to enable inquiries to be made as to when the application for judicial review was to be listed for hearing. On the hearing of the application resuming that afternoon, Judge David was informed by counsel for the applicant that the application had not been lodged. The judge was also told that the applicant had absconded. Judge David refused to take the matter out of the trial list.

14. On 18 September 2003 the applicant brought the matter on again before Judge David. The accused was not present. Counsel for the applicant informed the judge the application for judicial review had been lodged. That application was some nine months late. Judge David adjourned the application so that it could be heard by the trial judge.

15. On 22 September 2003 the matter came on for trial before Judge Lunn. The applicant did not answer his bail. Judge Lunn issued a warrant for his arrest in the event the trial was adjourned. The applicant remains at large.

16. On 22 September 2003 a Master of this Court granted leave to serve the summons applying for judicial review. The Director of Public Prosecutions was later joined as a party. Counsel for the District Court has informed this Court that the District Court will abide the event.

17. The applicant seeks to amend his application yet again. He now seeks the following relief:

    1.That this Court grant an order in the nature of certiorari quashing the ruling of Judge Lunn that s 102(3) and s 103(3) of the Summary Procedure Act do not apply to the information.

    2.That this Court grant an order in the nature of prohibition to prevent the District Court or any judge thereof from empanelling or having a jury empanelled in any trial to hear the information.

    3.That this Court extends the time within which to make this application.

    4.That the proceedings in the District Court be stayed until further order.

    The applicant also applies to amend the grounds on which the application is sought. To all intents and purposes those grounds are the same as had already been relied on.

18. There are a number of hurdles standing in the path of this application. All of these hurdles relate to the exercise of the court’s discretion should it be minded to grant the relief which the applicant seeks. In my view, these hurdles are of such significance that, even if the applicant were entitled to the relief which he seeks, which I strongly doubt, he should not be entitled to relief. I will not, therefore, review in detail the merits of this matter. Suffice it to say that I am not persuaded that the applicant has established that he is entitled to the relief which he seeks on the merits.

19. I turn, therefore, to examine the other matters which lie in his path. At the outset, I notice that there is a question whether this Court has jurisdiction to review a decision of the District Court made in the exercise of the criminal jurisdiction of the District Court: Craig v The State of South Australia (1995) 184 CLR 163 at 175. I assume for the purposes of this application that this Court does have that jurisdiction.

20. In this application the applicant seeks to canvass the same issues as had been argued before Judge Lunn some 12 months ago. I repeat that on 20 December 2002 Judge Lunn delivered his judgment and dismissed both the application for a stay and the application to quash the information. Although there were two separate applications, the essence of the applicant’s case before Judge Lunn was that it was an abuse of process for the information to be presented in this way or to be presented in the manner in which it had. A question arising before trial as to whether proceedings on an information should be stayed on the ground that the proceedings are an abuse of process of the court is an issue antecedent to trial: s 348 of the Act. Section 352(1)(c) of the Act provides a right of appeal to a defendant against a decision on an issue antecedent to trial. Judge Lunn had determined an issue antecedent to trial. The applicant, therefore, had a right of appeal to this Court. The applicant chose not to exercise that right.

21. The remedies of certiorari and prohibition which the application seeks are discretionary in nature. It is well-established that the existence of an alternative remedy is a ground for refusing to grant an order of the nature of certiorari and prohibition. In Tooth and Co Ltd v The Council of the City of Parramatta (1955) 97 CLR 492 at 498, Dixon CJ said:

    “Where the legislature has provided for the very description of case a remedy designed as appropriate and adequate, a court should be careful that mandamus is not used to avoid recourse to the remedy or as a substitute for it. The general rule is that the court exercises its discretion against granting a writ of mandamus where a remedy is provided by way of appeal or the like which is equally convenient, beneficial and effective. If the writ of mandamus does not provide the party with a more convenient and better remedy, the court, in such a case, leaves the party with that which has been provided.”

    Although these remarks were made on an application for mandamus, they apply with equal force to the remedies of certiorari and prohibition. As Sir John Donaldson MR said in R v Epping and Harlow General Commissioner, ex parte Goldstraw [1983] 3 All ER 257 at 262:

    “It is a cardinal principle that, save in the most exceptional circumstances, that jurisdiction will not be exercised where other remedies were available and have not been used.”

    See also the discussion in Gudgeon v Black; Ex parte Gudgeon (1994) 14 WAR 158 at 174 to 188. Parliament has provided for this very case the appropriate and adequate remedy of appeal. The applicant chose not to avail himself of that remedy. He should not now be permitted some 12 months later to canvass the same issues in this application for judicial review. All the applicant is seeking to do is to have a second bite at the same cherry when he has chosen not to exercise his right of appeal. The application is therefore entirely unmeritorious. There is nothing unusual about it to take it out of the general rule.

22. I add that had the applicant exercised his right of appeal to the Court of Criminal Appeal, the matter would have been heard and determined long ago. The applicant now seeks to apply by way of judicial review from a decision where a right of appeal to the Full Court existed. This application only serves yet to add a further step in the proceedings and thus cause further delay and cost. That is another factor going to the exercise of discretion and indicates that the discretion should be exercised against the applicant.

23. Given that the applicant did not exercise the right of appeal under s 352(1)(c) of the Act and that that remedy by way of appeal is the more appropriate remedy in which to resolve the question, in the exercise of my discretion I decline to grant the relief sought.

24. The applicant has a further substantial hurdle in his path. It is well settled that in only an unusual and exceptional case will this Court make an order on an application for judicial review in the course of a criminal proceeding in the District Court: Dimitropoulos v District Court of South Australia (1998) 199 LSJS 7 at 12 and the decisions cited therein. The obvious policy reasons for the principle are set out in Lamb v Moss (1983) 49 ALR 533, in The Queen v Harry; ex parte Eastway (1985) 39 SASR 203 per King CJ at 212 – 213, and in Goldsmith v Newman (1992) 59 SASR 404 per King CJ at 412. This application amply illustrates the policy reasons underlying the principle in that trial of the accused upon the offences charged on the information has been delayed for some 12 months without any justification. There is nothing exceptional or even unusual about this application. The applicant is simply dissatisfied with the decision of Judge Lunn delivered almost 12 months ago on 20 December 2002 and he seeks to reargue the same issues. The application must be dismissed on this ground also.

25. There is a third difficulty lying in the path of the applicant. As already noted, by 16 September 2003 he had absconded. He did not answer his bail on 22 September 2003. He remains at large. An accused person who has demonstrated his contempt for the law, or at least his unwillingness to comply with his obligations at law, by failing to attend on his arraignment, by failing to comply with his bail agreement and by remaining at large, cannot reasonably expect the court to exercise its discretion in his favour. For these reasons, even if the applicant were able to establish that he is entitled to the relief he seeks, which I believe he has not, this is another ground upon which, in the exercise of the court’s discretion, it is appropriate to refuse to grant that relief.  There are, therefore, three substantial grounds on which to refuse the relief which the applicant seeks.

26. In these circumstances, it is unnecessary to deal with the fact that this application was not commenced until 18 September 2003 and I do not do so. However, it is relevant to note that some four months had elapsed after Judge Lunn had delivered his judgment on 20 December 2002 before, it seems, instructions were given to make the application. In my view, that was an unconscionable delay. The applicant was to have been arraigned on 23 September 2002. That arraignment was adjourned to enable the application to be heard. The applicant failed in his application. Having failed, he should have promptly proceeded to issue any further application and a delay of four months from the day of Judge Lunn’s order is too long, especially as it was some seven months after the intended arraignment. However, as already noted, it is unnecessary to decide the application on this ground.

27. For all of these reasons, the application is dismissed. The orders will therefore be:

    1.Application dismissed.

    2.The applicant will pay the Director of Public Prosecutions costs in the sum of $250.

    3.No order as to costs in favour of the District Court of South Australia.