S v Stefan Peter Metanomski and State of South Australia No. SCRG 92/2666 Judgment No. 3805 Number of Pages 5 Prerogative Writs Criminal Law and Procedure (1993) 65 a Crim R 353

[1993] SASC 3805

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ (1) AND PERRY J (2)

CWDS
Prerogative writs - Judicial review of ruling prior to preliminary examination of charges of indictable crimes - considerations against interference in criminal proceedings - no error of law - order in nature of certiorari and consequential orders refused.
Criminal law and procedure - jurisdiction, practice and procedure - Order by magistrate prior to preliminary examination refusing leave to call witnesses for oral examination (5.106 Summary Procedure Act) - judicial review - considerations against interference in criminal proceedings - interests of justice include fair trial of accused and orderly conduct of such trial - desirability of limited cross- examination in interests of justice - countervailing considerations to be weighed by magistrate - no error of law disclosed - orders by way of judicial review refused.

HRNG ADELAIDE, 26 January 1993 #DATE 2:3:1993
Counsel for plaintiff:     Mr K V Borick and Mr T J H Jackson
Solicitors for plaintiff:    Wallmans
Counsel for Defendant:     No appearance
Counsel for defendant State of South Australia:
   Mr P J L Rofe QC
Solicitors for defendant State of South Australia:
   Crown Solicitor

ORDER
Action dismissed.

JUDGE1 KING CJ This is an action for Judicial Review of an order made by a magistrate in the Elizabeth Magistrates Court refusing leave pursuant to s.106(1)(b)(ii) of the Summary Procedure Act 1991 to call two witnesses for oral examination at a preliminary hearing of charges of major indictable crimes, and refusing a view before such oral examination. 2. The plaintiff, a medical practitioner, has been charged on an information containing two counts of procuring by intimidation the alleged victim to have sexual intercourse, between the 1st April 1991 and the 9th September 1992. The prosecutor has filed in the Elizabeth Magistrates Court pursuant to s.104 of the abovementioned Act statements of the two witnesses who are the subjects of the order. One of those witnesses is the alleged victim and the other her male friend. 3. The alleged victim, in her statement, states that she had become addicted to the drug Pethidine after it had been prescribed for pain by a doctor other than the plaintiff. She consulted the plaintiff about Easter 1990. She obtained prescriptions for Pethidine from the plaintiff and from other doctors. Early in 1992 the Australian Medical Association, having become aware of the drug abuse, sent a letter to the doctors advising that the drug was not to be prescribed for her. She then began to request home visits by the plaintiff. The substance of her allegations is that before the plaintiff would inject her with Pethidine, he would intimidate her by making it clear that unless she agreed to sexual acts he would not supply the drug. She says that in that way he procured her to engage in sexual acts, including oral sex and penile penetration of her vagina. She states that the visits occurred between 12.30 pm and 2.30 pm but there is no particularity as to dates and very little as to identifiable occasions. 4. The statement of the alleged victim's friend speaks of an occasion on 9th September 1992 when the alleged victim told him during a telephone conversation that the plaintiff had arrived. She left the receiver off the hook and he overheard an incriminating conversation. 5. In accordance with the Magistrates Court Rules, the plaintiff applied for leave for those witnesses to be called for oral examination. The application was heard before the commencement of the preliminary examination. The plaintiff also applied for a view of the alleged victim's house before such oral examination. Both applications were refused. 6. The plaintiff seeks an order in the nature of certiorari quashing the magistrate's order and an order in the nature of mandamus directing him to grant leave. He also seeks declarations of his right to the orders sought from the magistrate and an injunction or order in the nature of prohibition forbidding the continuance of the preliminary examination until the orders for oral examination and the view have been made. 7. Declarations of Right and Injunctions may now be granted in an action for Judicial Review (Supreme Court Rule 98.01). The Rule, however, merely enlarges the remedies which may be granted and does not purport to widen the grounds upon which relief by way of Judicial Review may be granted. Relief by way of Judicial Review remains confined to situations in which one or other of the prerogative orders could formerly have been made. 8. The supervisory jurisdiction of the Supreme Court by way of Judicial Review extends to preliminary examinations of charges of indictable crimes; Clayton v Ralphs and Manos (1987) 45 SASR 347. As I pointed out in R v Goldsmith (delivered 21st December 1992), there are strong considerations against the exercise of the jurisdiction in relation to preliminary examinations even where there are legal grounds for the making of an order by way of Judicial Review. The first and basic question in this case, however, is whether there is an error of law on the face of the record which would legally justify an order in the nature of certiorari. 9. A copy of the relevant record in the Magistrates Court has not been exhibited to the plaintiff's affidavit. It is essential in an action seeking an order in the nature of certiorari that the record be placed before the Court. It was necessary for the Court to obtain and inspect the Magistrates Court file. It contains an indorsement of an order refusing an application for the oral examination of the two witnesses but makes no reference to an application for a view. It does not contain any transcript of reasons or remarks by the magistrate. Perhaps such a transcript forms part of the record but has not been placed before us. For the purpose of disposing of these proceedings, I am prepared to assume that what is stated in the affidavit appears on the face of the record in the Magistrates Court. 10. I set out the provisions of s.106 of the Summary Procedure Act:
    "106. (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 leave to call that witness for oral
    examination;
    (c) the prosecutor may, by leave 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 leave 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
    leave 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;
    (b) the need to ensure that the issues for trial are adequately
    defined;
    (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 leave 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." 11. This section was considered in R v Goldsmith and I do not repeat what was said in the judgments in that case. 12. The first point made by Mr Borick, who appeared for the plaintiff, was that an expression used by the magistrate indicated an erroneous understanding of the section. His Honour said: "Parliament envisaged that defendants would be disadvantaged". Mr Borick sought to interpret that as meaning that parliament intended to disadvantage defendants. I do not think that that meaning can reasonably be attributed to the words used by the magistrate. It was no doubt an appropriate retort to a submission that leave ought to be granted as otherwise the plaintiff would be disadvantaged. It is plain from the section that parliament is prepared to tolerate some disadvantage to accused persons in order to achieve the purposes of the section. So much is recognised in R v Goldsmith. The expression used by the magistrate does not disclose an error of law. 13. Mr Borick contended that in the circumstances of the case, leave could not reasonably have been refused if the magistrate correctly understood the meaning of "special reasons" and that there must have been at least an undisclosed error of law. He recognised that that could not be said of the ruling as to the examination of the male friend or as to the view, and he did not press for relief as to those rulings. As to the ruling with respect to the alleged victim, however, he pointed out with much reason that the vagueness of her statement placed the defence at a great disadvantage in preparing for trial. There exist records of the medical practice and the Health Commission which would be available to refute a false allegation if dates and occasions were specified. Alibi evidence might be available. He stressed that the application was to cross-examine only as to dates and occasions and that it was not sought to subject the alleged victim to two cross-examinations as to the details of the alleged sexual conduct. 14. I see much merit in the argument in favour of allowing a limited cross-examination of the kind sought. The arguments, however, are not all one way. There are the general purposes of s.106 discussed in R v Goldsmith. There is the argument put to the magistrate by the prosecutor that the alleged victim would be unlikely to remember dates more specifically. Moreover, unlike R v Goldsmith, this was a sexual case. The Court "must not grant leave unless satisfied that the interests of justice cannot be adequately served except by doing so". There is therefore the evident policy of the legislature to discourage dual cross-examinations of alleged victims of sexual crimes. The magistrate may have considered that the interests of justice could be adequately served by the particularization of the charges, the supply before trial of a more specific and detailed statement of the alleged victim and perhaps appropriate measures by the trial judge. 15. I am bound to say that if I had been the magistrate, I would have permitted limited cross-examination of the alleged victim. It is important for magistrates to keep in mind that the interests of justice include a fair trial for an accused person and the orderly conduct of that trial. In order to secure a fair trial, it is necessary for the accused to be able to obtain sufficient information before trial to enable the defence to be prepared. In a case like this, particulars and a more detailed statement may assist, but it is clearly important to the defence to tie the witness down, so far as possible, to dates. There is a real danger in this case that, unless remedial action is taken, the cross-examination at trial will produce for the first time information as to dates and occasions which must then be checked and that the consequence will be the disruption of the trial. These considerations would have strongly inclined me to the view that the interests of justice could not be adequately served without cross-examination. There were, however, the countervailing considerations which I have mentioned. The magistrate was required to weigh the considerations and reach a decision. The fact that he reached a decision which might be erroneous on the merits does not mean that he misconceived the test which he had to apply. There is no appeal from the magistrate's decision. The decision is not so unreasonable that it could have been arrived at only as a result of an erroneous understanding of the legal test. It follows that no error of law has been demonstrated. There is therefore no legal basis for the grant of the orders sought and the question of whether the discretion of the Court should be exercised to grant such relief in relation to what are criminal proceedings does not arise. 16. In my opinion the claim for remedies by way of Judicial Review must fail and the action must be dismissed.

JUDGE2 PERRY J I agree that the action should be dismissed for the reasons given by King CJ.