Sedmak v Police

Case [2008] SASC 307

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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AGLC
Sedmak v Police [2008] SASC 307
Case
[2008] SASC 307
Decision Date

CaseChat Overview and Summary

In Sedmak v Police, the appellant, Sedmak, appealed against the decision of a Magistrate who refused to permanently stay the criminal proceedings against her prior to the commencement of the trial. Sedmak was charged with dishonestly and without consent taking the property of her former employer, Royal Park Power Pty Ltd (the Company). She claimed that her former employer's director authorised the transactions, but the director denied authorising electronic transactions. The bank with whom the Company maintained an account could not locate records relating to the authorisation of electronic transactions on the account. The appeal concerned whether the Magistrate's decision was a 'judgment' for the purposes of section 42 of the Magistrates Court Act and if the decision was an 'interlocutory judgment' requiring permission to appeal. The appeal also considered whether the refusal to grant a stay amounted to an abuse of process.

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

Orders of the court

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Background

Background to the litigation

I consider that the Magistrate correctly refused to grant a stay. Facts No evidence has been taken before the Magistrate. Most of what follows is based on submissions put to the Magistrate on the application for a stay. The facts were not in dispute, but I emphasise that the Magistrate had nothing more than the submissions of counsel before her. Ms Sedmak is charged with 30 counts of taking money the property of Royal Park Power Pty Ltd (“the Company”) dishonestly and without the Company’s consent. The prosecution alleges that between March 2004 and June 2005 Ms Sedmak withdrew about $70,000 without the permission or authority of the Company, from an account that the Company maintained with Australia and New Zealand Banking Group Ltd (“ANZ”). Ms Sedmak admits that she made the withdrawals. They numbered 30 in all. She says that they were made by electronic or telephonic transaction. She claims that she had the permission of Mr Jurkovic, a director of the Company, to take the money. Mr Jurkovic denies that he authorised Ms Sedmak to take the money. In addition, Mr Jurkovic denies authorising transactions on the bank account by telephone or by electronic transaction. ANZ records apparently indicate that Mr Jurkovic opened the bank account in question on 22 July 2002. At that time he was the sole authorised signatory for the purposes of operations on the account. ANZ has been unable to locate its records relating to the authorisation of telephonic and electronic transactions on the account. It appears that the ANZ records relating to this matter are lost or have been destroyed. If the ANZ records were available, and if they indicated that Mr Jurkovic had authorised telephonic and electronic transactions on the account, that evidence would undermine Mr Jurkovic’s denial that he authorised such dealings on the account. Depending on the evidence that he gave, they might also undermine his credit. Likewise, those records might support Ms Sedmak’s credibility. No-one knows what the missing records would disclose, and so it is pure guesswork to say whether or not they would assist Ms Sedmak’s defence. Counsel for Ms Sedmak submitted to the Magistrate that without the bank records there could not be a fair trial. He submitted that the question of whether Mr Jurkovic was involved in establishing telephonic and electronic banking facilities was fundamental to the assessment of the credibility of Mr Jurkovic and that of Ms Sedmak. The Magistrate disagreed, and refused the application. She said:[5]In this case, the issue is whether the defendant took the money with the permission of the victim. The central issue is not how the electronic banking facility was established. True it is that the missing bank records would be relevant to assessing the credibility of the witnesses, but that evidence is not in its nature so crucial to the facts in issue, that its absence would render the trial unfair. A stay will be granted in rare and exceptional cases. This is a case where the credibility of the witnesses (and the defendant, should she choose to give evidence) will be critical, but that is not rare or exceptional.Permission to appeal

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It cannot be said that a trial in the circumstances as they were outlined to the Magistrate will necessarily be an unfair trial. The Magistrate was right to dismiss the application that was made to her.Conclusion I dismiss the appeal against the refusal of a stay.

Ratio Decidendi

Legal Principle Established

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