Sedmak v Police - [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 (1998) 197 LSJS 398; R v Reeves (1994) 122 ACTR 1; Police v Sherlock [2008] SASC 294, distinguished.
Commonwealth Service Delivery Agency v Bourke (1999) 75 SASR 299, not followed.
R v Ulman-Naruniec [2003] SASC 437; (2003) 143 A Crim R 531, considered.

SEDMAK v POLICE
[2008] SASC 307
Magistrates appeal: Criminal

DOYLE CJ: This is an appeal against a decision by a Magistrate refusing to stay permanently the prosecution of charges against Ms Sedmak.
Counsel for Ms Sedmak applied for a stay of the prosecution on the basis that documents held by a third party had been lost; these documents would have thrown light on a relevant transaction, and Ms Sedmak hoped that those documents would support a significant aspect of her defence.
The Magistrate said that the missing documents were not so crucial to the facts in issue that their absence made the trial unfair. The Magistrate refused to order a stay.
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
By s 42 of the Magistrates Court Act 1991 (SA) (“the MCA”), a party to a criminal action can appeal against a judgment given in the action. “Judgment” is defined by s 3(1) of the MCA to mean:
... a judgment, order or decision and includes an interlocutory judgment or order ...
Section 42(1a) provides as follows:
(1a)An appeal does not, however, lie against an interlocutory judgment unless—
(a)     the judgment stays the proceedings; or
(b)     the judgment destroys or substantially weakens the basis of the prosecution case and, if correct, is likely to lead to abandonment of the prosecution; or
(c)     the Court or the appellate court is satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial and grants its permission for an appeal.
I consider that the Magistrate’s decision is a judgment as defined, because it is an order or decision for the purposes of that definition. The Magistrate’s decision was made on an application made to the Court for an order which, if made, would mean that the prosecution could not proceed. Her decision is not a mere incidental ruling in the course of proceedings, such as might be made on an application for an adjournment, or on a challenge to the admissibility of evidence. It was a decision on a substantive application, although to say that is, to some extent, to beg the question. I consider that treating this decision as a judgment for the purposes of s 42(1) is consistent with existing decisions on that section.
However, I consider that the decision is an interlocutory judgment. The order refusing a stay has no final effect in relation to the issues between the parties. The application for a stay can be renewed, in particular at the close of the prosecution case or at the close of the defence case. While it might not be right to call the decision a mere procedural decision, it is certainly not a final order or decision.
It follows that an appeal lies only if I am satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined at this stage, the trial not having begun.
Ordinarily, in a case like this, the Magistrate having refused to order a stay, one would expect the case to proceed. As I have already mentioned, counsel for Ms Sedmak could renew the application in light of the evidence given at trial, if that evidence cast a different light on the issues relevant to the grant of a stay. If the Magistrate convicted Ms Sedmak, the refusal of a stay could be a ground for an appeal against a conviction. If the Magistrate later decided to grant the stay in light of the evidence before her, that decision could be the subject of an appeal by the prosecution.
There is no particular benefit to the interests of justice in having me review the Magistrate’s ruling at this stage. If there is to be a challenge to the ruling, it is better that that challenge be made and decided on the basis of evidence, rather than on the basis of submissions and fairly brief agreed facts. Accordingly, there are reasons why an appeal against the decision should not be decided at this stage, and there are no circumstances in the nature of special reasons for concluding that it is in the interests of the administration of justice to have the appeal determined now.
In those circumstances, this does not appear to be a proper case to grant permission to appeal. However, Ms Boord, counsel for the respondent, did not oppose the grant of permission to appeal. It does not follow that permission is to be granted. But as both parties apparently wish the question of a stay to be determined, I will, somewhat reluctantly, grant permission to appeal.
Should a stay have been granted?
The Magistrates Court is a court of record: s 5 of the MCA. The Magistrates Court has power to stay proceedings on the basis that to allow them to proceed would give rise to an abuse of its process. Section 42(1a)(a) assumes the existence of such a power, because it refers to an appeal against a judgment that stays proceedings.
The power to stay proceedings as an abuse of process will be exercised only in exceptional circumstances, because the duty of a court is ordinarily to exercise its jurisdiction and to decide a case, when that jurisdiction is properly invoked: Jago v The District Court of New South Wales (1989) 168 CLR 23 at 31 Mason CJ, at 55-56 Deane J, at 71 Toohey J and at 76 Gaudron J.
Although Jago is a decision relating to delay in the conduct of proceedings, delay being a matter of established and traditional concern, decisions of Full Courts of a number of State courts have proceeded on the basis that delay is but one of the factors that can enliven the power to stay proceedings. The decision of the Full Court of this Court in R v Ulman-Naruniec [2003] SASC 437; (2003) 143 A Crim R 531 proceeds on the basis that the court has a power to stay proceedings as an abuse of process that is not limited to unfairness resulting from delay. Accordingly, I proceed on that basis.
It is essential to bear in mind that this power will be exercised only in exceptional circumstances. As Mason CJ said in Jago, in the context of an application for a stay of proceedings on the basis of delay (at 34):
To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial "of such a nature that nothing that a 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 p 111, per Wilson J. …
A court cannot ensure that each case before it is heard and decided fairly, using that term in the way in which it is commonly used. An important witness might die, or fall ill, or be unavailable when a case comes to trial. One party might have better quality representation than the other. One party might be better resourced than the other. Litigation can be affected by all kinds of events, accidents and influences, many of them being beyond the reach of the powers of the court: see Jago at 49-50 Brennan J.
That is why I emphasise that the power to stay proceedings is not to be approached on the basis that the court will stay proceedings simply because, in a general sense, it can be said that in some respect the proceedings will be unfair from the defendant’s point of view.
I respectfully agree with and adopt the following general observations by Greg James J in Duncan v Crews [2001] NSWSC 376; (2001) 161 FLR 250 at [49]:
Although there have been prosecutions stayed by reason of abuse of process for unfairness where the evidence has been destroyed … the mere absence of evidence that has become unavailable otherwise than by the fault of the defendant is not itself generally sufficient to justify a stay of proceedings … It is of fundamental importance to the processes of justice that courts should exercise their jurisdiction ... The absence of important evidence which might have assisted the Crown will usually leave a defect in the Crown case which, if not repairable, may result in a reasonable doubt and acquittal. The absence of evidence which might have assisted the defence requires evaluation of the importance of that evidence to enabling the defence to have a fair trial.
Citations omitted
It also must be remembered that the interests of the accused are not the only matters calling for consideration. A court must also consider the public interest in charges of criminal conduct being brought to trial and decided: Jago at 33 Mason CJ, at 72 Toohey J. The interests of the persons affected by alleged criminal conduct also fall for consideration: Jago at 50 Brennan J.
For these reasons, the concept of unfairness that will enliven the power is a relatively narrow one. The power to stay proceedings will be enlivened by unfairness of a kind such that, allowing for the limitations on the powers of a court to ensure fairness, there remains some factor which means that unless a stay is granted, the trial process itself will be unfair. There is an element of circularity in this which I recognise.
There are a number of features of the present case which demonstrate that the Magistrate was correct. There is no suggestion that the loss of the ANZ records is attributable to the default of the prosecution. I do not suggest that this is decisive, but if an accused is put at a significant disadvantage because of some default or dereliction on the part of the prosecution, the prospects of a court intervening are greater. There is no way of knowing whether the ANZ records would help or hinder the defence. It is pure speculation to suggest that they would assist the defence. Moreover, as the Magistrate correctly said, the central issue is whether Ms Sedmak had authority from the Company, or from Mr Jurkovic, to take the money on each occasion on which money was taken from the company account.
The ANZ records relating to the establishment of telephonic or electronic access to the bank account may be relevant to the central issue but whether or not such access was established is not itself the issue in this case. Evidence that Mr Jurkovic authorised telephonic or electronic operations on the account might have an adverse effect on the credibility of Mr Jurkovic. The same can be said of evidence that Ms Sedmak had authority to withdraw money from the account. Even if she had authority to operate on the account, the issue would still remain of whether Ms Sedmak had authority to make the withdrawals in question. This is, moreover, an issue on which Ms Sedmak and Mr Jurkovic are likely to be able to give oral evidence.
In short, on the limited information before the Magistrate, the Magistrate did not err in failing to be satisfied that a trial would necessarily be unfair in the required sense. The Magistrate rightly took the view that the trial should proceed. The Magistrate before whom the trial takes place can, in due course, and in the light of all the evidence, consider whether there is such fundamental unfairness that the trial should be stayed.
Mr Retalic, counsel for the appellant, referred to and relied on a number of decisions of judges on applications for a stay of proceedings. The issue before me on appeal cannot be decided by comparing the facts of one case with another. The decision in each case turns on all the facts of the case, and comparisons between cases are of very limited value.
Bearing that in mind, I make the following brief comments on a number of the cases to which Mr Retalic referred.
In Holmden v Bitar (1987) 47 SASR 509 the defendant was charged with bringing into Australia “meat pate”, contrary to the Quarantine Act 1908 (Cth). An averment by the prosecution put the burden of proof with respect to the contents of the relevant containers on the defendant. But the contents of the containers had been destroyed by the quarantine authorities. The defendant had no opportunity to have the contents analysed with a view to discharging the burden of proof put on the defendant by the prosecution averments. In those circumstances, relying on “… the combination of the averment provision and the destruction of the actual evidence” (at 517), Cox J held that it may well have been a proper case for a stay, but in any event upheld an appeal against the dismissal of the charges. That case is far removed from the present case.
In Duncombe-Wall v Police (1998) 197 LSJS 398 Lander J allowed an appeal against a conviction, set aside the conviction, and ordered that the proceedings be stayed permanently. In that case relevant evidence had been lost through the conduct or inaction of police officers, after the prosecution had been put on notice that the defendant relied upon, and called for the production of, the evidence in question. The evidence that was lost was a tape recording of two telephone calls made to the police at about the time of the incident the subject of the prosecution. The defendant asserted that it was he who had made the phone calls in question, and if that assertion was made good, it was unlikely that he could have been found guilty. Lander J described the conduct of the police in failing to preserve the relevant evidence as “high handed” (at 407) and said that the evidence that had been lost was important evidence on the issue of credibility in a case in which credibility was all important (at 408). The basis for a stay in that case was a good deal stronger than the present case.

Mr Retalic referred also to R v Reeves (1994) 122 ACTR 1. That is a case in which, in brief, there had been wholesale destruction of company records that were important, as I understand the case, both for the prosecution and for the defence. The Judge was satisfied that without the records in question the accused was “…deprived of properly advancing a contesting hypothesis consistent with innocence”: at 23. That case also appears to me to be a stronger case than the present one.
In Commonwealth Service Delivery Agency v Bourke (1999) 75 SASR 299 Wicks J followed and relied upon the decision of Lander J in Duncombe‑Wall and granted a stay of proceedings. I acknowledge that the basis for the grant of a stay in that case does not appear to be any stronger than the present case. However, as I have already said, the case before me is not to be decided by comparing case with case. For what it is worth, I share the reservations about the decision expressed by Greg James J in Duncan v Crews at [64]-[68].
Finally, Mr Retalic referred to Police v Sherlock [2008] SASC 294. In that case a Judge of this Court dismissed an appeal against a decision of a magistrate granting a stay of proceedings. That was a case in which closed circuit television footage of an incident the subject of a prosecution had been destroyed. I gather that the relevant footage had not been destroyed by the police, but by the proprietor of the cameras that made the recording. In the Judge’s view the recorded footage was “central” to the credibility of a prosecution witness whose evidence was important in the case: at [22]-[23]. That again appears to me to be a stronger case than the present one.
I have referred to these decisions in deference to the submission advanced by Mr Retalic. However, I reiterate the point made already, that each case turns on its own facts, and one case cannot be decided by comparing the prejudice to the defendant and how it arose, with the circumstances of another case. In the end the question is whether, in the particular circumstances, the trial will necessarily be unfair, and that question is best answered by considering the facts of the instant case, bearing in mind the exceptional nature of the power that is invoked, and bearing in mind that a court cannot ensure fairness in the general sense in which that term may be used in the community.
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.