SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SEDMAK v POLICE
[2008] SASC 307
Judgment of The Honourable Chief Justice Doyle
12 November 2008
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - WHEN APPEAL LIES AND EFFECT OF DEATH OF PARTY
Appeal against decision of Magistrate prior to commencement of trial refusing to permanently stay proceedings - whether decision a 'judgment' for the purposes of s 42 of the Magistrates Court Act - whether decision an 'interlocutory judgment' requiring permission to appeal.
Held: decision not a mere incidental ruling in the course of proceedings - decision a 'judgment' for the purposes of the Magistrates Court Act - order refusing a stay has no final effect in relation to the issues between the parties - not a final order or decision - decision an 'interlocutory judgment' subject to appeal only with leave of the Court.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
Appeal against decision of Magistrate prior to commencement of trial refusing to permanently stay proceedings - appellant charged with dishonestly and without consent taking the property of another - victim former employer - money taken from employer's bank account electronically - defence of appellant that director of employer authorised the transactions the subject of the charges - director denied authorising electronic transactions - bank with whom employer maintained account unable to locate records relating to authorisation of electronic transactions on account - contents of missing records unknown - whether to allow trial to proceed would be an abuse of Magistrate Court's process calling for a permanent stay of proceedings.
Held: power to grant permanent stay of proceedings exercised only in exceptional cases - power to stay proceedings enlivened where the matter the subject of complaint results in the trial process itself being unfair - if matter complained of involves a loss of evidence, whether or not a stay will be granted will be influenced by the extent to which the loss of the evidence is attributable to the prosecution - decisive factor the particular facts of each case - inability to locate bank records not attributable to prosecution - unclear what the bank records would disclose - whether director established electronic access to bank account may be relevant to the central issue, but is not itself the issue in the case - Magistrate hearing the trial will be in a better position than appeal Court to decide whether a stay should be granted - Magistrate did not err in refusing to grant stay - appeal dismissed.
Magistrates Court Act 1991 (SA) s 3(1), s 5, s 42(1), s 42(1a); Quarantine Act 1908 (Cth), referred to.
Jago v The District Court of New South Wales (1989) 168 CLR 23; Duncan v Crews [2001] NSWSC 376; (2001) 161 FLR 250, applied.
Holmden v Bitar (1987) 47 SASR 509; Duncombe-Wall v Police
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- Sedmak v Police [2008] SASC 307
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- [2008] SASC 307
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CaseChat Overview and Summary
The court held that the decision was not a mere incidental ruling in the course of the proceedings, but a 'judgment' for the purposes of the Magistrates Court Act. The order refusing a stay had no final effect in relation to the issues between the parties, and it was not a final order or decision. The decision was an 'interlocutory judgment' subject to appeal only with leave of the Court. The court also held that the power to grant a permanent stay of proceedings was exercised only in exceptional cases. The power to stay proceedings was only enlivened where the matter the subject of the complaint resulted in the trial process itself being unfair. The court found that the inability to locate bank records was not attributable to the prosecution, and the particular facts of each case were decisive. The Magistrate did not err in refusing to grant a stay, and the appeal was dismissed.
The court dismissed the appeal against the refusal of a stay and found that the Magistrate was correct in her decision. The court emphasised that the central issue was whether the defendant took the money with the permission of the victim, not how the electronic banking facility was established. The missing bank records, while relevant to assessing the credibility of the witnesses, were not crucial to the facts in issue. A stay would be granted in rare and exceptional cases, and this case did not meet that threshold. The court concluded that permission to appeal was not granted, and the appeal was dismissed.
Orders
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