Steven John Carter v Ruth Hayes SM and the State of South Australia No. 4208 Judgment No. SCGRG 93/1429 Number of Pages 7 Criminal Law and Procedure (1993) 68 a Crim R 469

[1993] SASC 4208

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Criminal law and procedure - Subpoena to Commissioner of Police by a defendant to an information proceeding summarily in a Magistrates Court alleging one count of indecent assault seeking pretrial production of all statements in the hands of the prosecution, including statement of the prosecutrix, and of all other witnesses, struck out by Magistrate as 'fishing' - application by way of judicial review to quash the order of the Magistrate and reinstate the subpoena - held that it was not appropriate to equate the obligation of disclosure in summary matters with that which applies in the case of matters proceeding by way of preliminary examination - resort to the provisions in the Summary Procedure Act and the Magistrates Court Rules dealing with pretrial directions in summary matters should result in the defendant being put fairly on notice as to the nature of the case which he or she faces - application for judicial review refused. Summary Procedure Act 1921ss.103, 104 and 106 and Magistrates Court Rules Section B, Rules 21.04 and 8.07. Goldsmith v Newman and Anor (unreported) King CJ, Perry and Duggan JJ, 21.12.92, Judgment No 3725; Richardson v R (1974) 131 CLR 116 at 121 and In re Van Beelen (1974) 9 SASR 163 at 249, considered.

HRNG ADELAIDE, 16 September 1993 #DATE 30:9:1993
Counsel for plaintiff:     Mr C. Caldicott
Solicitors for plaintiff:    Caldicott and Co
Counsel for defendants:     Mr P. Barnett
Solicitors for defendants: Crown Solicitor (SA)

ORDER
Application dismissed.

JUDGE1 PERRY J This case involves an important question as to the right of a defendant charged in a Magistrates Court on an information alleging a minor indictable offence, and who does not elect for trial in a superior Court, to obtain what amounts to pre-trial discovery of witness statements in the police brief by use of a subpoena to produce documents addressed to the Commissioner of Police. 2. The plaintiff is charged on an information and summons issued out of the Port Adelaide Magistrates Court that on 14 July 1992 at Peterhead he indecently assaulted a person over the age of 12 years, contrary to s.56 of the Criminal Law (Consolidation) Act. 3. The alleged offence is a minor indictable offence, having regard to the designation of such offences in s.5(3)(a) of the Summary Procedure Act. 4. The plaintiff first appeared in answer to the summons on 23 February 1993, when he was remanded to appear on 16 March 1993. On that day, the plaintiff was represented by counsel who obtained a further remand until 13 April 1993. During the period of the remand, the plaintiff's solicitors contacted the police prosecutor for details of the "allegations". The allegations were supplied in the form of a written document headed "Police Allegations - Steven John Carter". The document reads:
    "Charge: Indecent assault Victim is Peta Busk
     States between 8-30 and 9-00 am on 14 July 1992 defendant came
    to the house and after a short conversation he put his hands
    around the victim's hips and moved them down and squeezed the
    victim's buttocks with both hands and kissed her on the cheek.
    Victim asked the defendant to leave which he did. Victim
    undressed and had a shower. While the victim was having a
    shower the defendant entered the bathroom, she pushed the
    defendant out of the bathroom and he left the house. He was
    interviewed on the 10th October 1992 he basically admitted
    knowing the victim but denied any indecent assault or behaviour.
    PRIORS Adelaide Supreme Court 15.12.87 robbery in company 4 1/2
    years gaol which was suspended upon him entering into a bond for
    $500.00 to be of good behaviour for 3 years." 5. When the plaintiff appeared in Court at the adjourned hearing, he was again represented by counsel who requested a copy of the "Record of Interview", and the matter was further adjourned until 18 May 1993. 6. Before the further adjournment date came up, the solicitors for the plaintiff wrote to the officer in charge of the Port Adelaide Police Prosecutions in the following terms by letter dated 27 April 1993:
    "Re: Steven John Carter
     - Matter listed 18th May 1993 at 11-30 am
     Further to our last communications in this matter I would be
    pleased if you could provide me with the following:-
     1. A copy of the original statement or complaint made by the
    alleged victim.
     2. A statement of the person to whom she made the complaint
    to.
     3. A statement of the Police Officer who first took the
    complaint.
     4. Copies of any medical examination that the alleged victim
    has undergone as a result of her complaint.
     5. Statement of the Police Officers who interviewed my client
    Steven Carter.
     6. A copy of the record of interview between the Police and
    my client Steven Carter.
     7. Copies of photographs which have been obtained of the
    alleged victim.
     We await your advice." 7. In response to that letter, the police prosecutor forwarded to the plaintiff's solicitors by facsimile transmission a copy of the "Record of Interview" between the investigating detective and the plaintiff. That interview is several pages in length and is, apparently, a transcription of the audio-visual recording of an interview with the plaintiff which took place on 10 October 1992. 8. The copy of the record of interview was accompanied by a facsimile transmission cover sheet in which the plaintiff's solicitors were informed: "This is not a declaration matter. The other statements sought will not be supplied, as I understand you have already been supplied with the allegations." 9. The plaintiff's solicitors responded to that letter by taking out a subpoena addressed to the Commissioner of Police requesting production in Court of the seven items detailed in the letter of 27 April 1993. The subpoena reproduces the same list in the same terms as appears in the letter. 10. On the return of the subpoena, an assistant police prosecutor submitted to the learned Magistrate hearing the matter that the subpoena should be set aside. Counsel for the plaintiff argued against that course, and sought production of the material in accordance with the terms of the subpoena. 11. Subsequently, the learned Magistrate delivered her ruling, accompanied by short reasons. After referring to the history of the matter, she summarised the submissions which had been put by counsel for the plaintiff. She noted that he had argued that:
    "In the absence of the documents, he was unable to advise
    his client and/or adequately prepare for trial." 12. She noted that he had admitted that he did not know whether item 4 (copies of any medical examination that the victim underwent as a result of the allegation) and item 7 (photographs of the victim, Peta Murray Busk, taken by medical personnel or by police) existed. She noted that there was no election notice filed (see Summary Procedure Acts.103(2)), and that counsel for the plaintiff had intimated that there would be no election, and that the matter would proceed summarily. She noted further:
    "Mr Caldicott submitted that the specific documents should
    be produced to this Court, and upon being satisfied as to their
    relevance, defence should then allowed to inspect or have copies
    of them. He argued that the only grounds upon which a subpoena
    could be set aside were relevance of privilege." 13. In dealing with the arguments which had been presented to her by the police prosecutor, she noted his argument that the subpoena was "inappropriately issued", and that what in fact defence counsel was doing was "requesting further and better particulars and/or discovery through an inappropriate process". She went on to observe:
    "He also added that the issue of subpoenas in similar
    circumstances in becoming commonplace (how commonplace, I do not
    know) and that the fad had to be stopped. I reject this
    submission as a valid argument in opposition to the subpoena.
    The issue seems very much to me to be one involving pre-trial
    disclosure." 14. After citing a number of authorities to which she had been referred, the learned Magistrate concluded:
    "A subpoena is a process to compel a witness's attendance
    at court for the purpose of either giving evidence or producing
    documents to the court or both. As I indicated, this matter has
    not been set for trial; no pre-trial conference has been
    undertaken, no request for a summary of evidence received by
    prosecution. As far as these proceedings are concerned, it is
    my opinion that the issue of this subpoena is nothing more than
    a fishing expedition. At the very least it is a request for
    further and better particulars and/or discovery. It is then in
    my opinion, an improper use of the process and therefore I order
    that the subpoena be set aside. I feel constrained to add that
    the time taken up in the issue of and argument about this
    subpoena could have been more fruitfully utilized by each of the
    parties complying with the rules. I therefore order that the
    parties undertake the appropriate negotiations - in the full
spirit of those rules and do so within the next 7 days." 15. The application to this Court is brought by way of judicial review, seeking an order quashing the learned Magistrate's decision. But as Ms Barnett for the defendant pointed out, the jurisdiction as to judicial review may well not be available as it is at least arguable that the Magistrate was acting within jurisdiction. Be that as it may, there is a right under s.42 of the Magistrates Act to appeal against an interlocutory ruling, and it would be open for me to deal with the matter as an appeal if I thought that judicial review was technically not open. 16. It is important in any event for some sort of ruling to be given as to the questions agitated during the hearing before me, as they are of some significance with respect to the conduct of matters in the criminal jurisdiction of Magistrates Courts. Accordingly, I do not pause to consider whether, if there was error, it is reviewable by the proceedings brought, or by appeal. The charge being for a minor indictable offence as defined in the Summary Procedure Act, it was open for the plaintiff to elect for trial in a superior court. Not having done so, the charge falls to be dealt with "in the same way as a charge of a summary offence" (s.103(3)). Summary offences are disposed of by summary trial without a preliminary examination. The procedure, therefore, may be contrasted with that which applies to the hearing of an indictable offence, that is, a major indictable offence or a minor indictable offence where there is an election for trial in a superior court. In those cases, there is a preliminary examination, before which the prosecutor must, in accordance with s.104, file in the Court, in accordance with the rules, evidentiary material of the kind described in s.104(1)(a), which includes (but is not limited to) (i) "statements of witnesses for the prosecution on which the prosecutor relies as tending to establish the guilt of the defendant", and (iv) "any other material relevant to the charge that is available to the prosecution." 17. The procedure to be followed at the preliminary examination takes the form of the tender by the prosecution of the statements and other material filed in the Court, which "subject to any objections as to admissibility upheld by the Court" are admitted in evidence (s.106(1)(a)). Witnesses are not called for oral examination unless the Court gives leave in accordance with the criteria set out in s.106. 18. The purpose of the present provisions pursuant to which a preliminary examination is conducted was examined by the Full Court in Goldsmith v Newman and Anor (unreported) King CJ, Perry and Duggan JJ, 21.12.92 (Judgment No 3725). In his joint judgment, with which Duggan J concurred, King CJ, after referring to ss.104 and 106, observed : "The evident purpose of the provisions is to curtail the scope of oral examination of witnesses, thereby reducing the burden on the justice system caused by lengthy preliminary hearings, to the extent that that is consistent with the interests of justice." 19. In a separate judgment, I observed : "It is apparent when the present amendments are viewed in the context of the legislative history which lies behind them, that the erosion of the right to cross examine witnesses at a preliminary examination has been balanced out by the enactment of provisions having the effect of enlarging the obligation of disclosure on the part of the prosecution." 20. Of course, in the case of trial by indictment, it is incumbent upon the Crown, if it does not propose to call a particular witness, to ensure that the accused is given the opportunity to call the witness, which means, in practical terms, that the Crown should furnish a copy of the witness's statement to the accused. (see Richardson v R (1974) 131 CLR 116 per Barwick CJ, McTiernan and Mason JJ at 121, and In re Van Beelen (1974) 9 SASR 163 per Walters, Wells and Jacobs JJ at 249). 21. Mr Caldicott for the plaintiff conceded during the course of argument that the purpose of the issue of the subpoena in the case at bar was to equate the position of the defendant at a summary hearing with the position of the accused in the case of a trial by indictment. He said during the course of argument: "A trial in the Supreme Court and a trial in the Magistrates Court are still both trials. If you are entitled to have statements at a trial in the Supreme Court, you should be entitled to have statements in a trial in the Magistrates Court." It is clear, then, that what the plaintiff is trying to do is to establish a right to pre-trial procedures in summary matters equating with the procedures which apply to the preliminary examination and trial of major indictable offences. 22. In the case of matters proceeding summarily, there is no equivalent in the Summary Procedure Act to s.104, insofar as that section obliges the prosecution, in matters proceeding by way of preliminary examination, to make pre-hearing discovery of statements of witnesses and other evidentiary material. That is not to say, however, that there are no pre-trial procedures in place, applicable to summary hearings, intended to define the issues. On the contrary, there are provisions in the Magistrates Court Rules designed to ensure that the defendant is put fairly upon notice of the essential allegations which he or she faces. Section B of the Magistrates Court Rules dealing with the criminal jurisdiction not only contains provisions establishing a regime of case flow management (Rule 8.00) but the prosecution must (Rule 21.04): "unless an election has been made ......... upon the request of the defence or direction of the Court ....... provide the defence with a summary of the evidence in support of each charge." 23. While it is true that that rule appears under the heading "Preliminary Examination", and the reference to an election makes it clear that the rule applies only to matters proceeding by way of an information, in such cases it is obviously intended that the furnishing of a "summary of the evidence in support of each charge" is to put the defendant fairly upon notice as to the essential allegations which he or she faces. Here no such request pursuant to Rule 21.04 has been made, and as the learned Magistrate pointed out, the matter had not been set down for trial and no pre-trial conference had been undertaken. 24. In my opinion, the learned Magistrates was clearly correct in taking the view that the subpoena should be struck out. Mr Caldicott admitted during the course of the hearing that he did not know whether all of the statements which he sought to have produced were in fact in existence, and indeed, in two instances, it appears that no such statement existed. He conceded further that the central purpose in having the statements produced ahead of the hearing was to see whether there was any material in them which might have enabled a line of cross examination to be pursued at the summary hearing. He clearly had no reason to believe that there would be anything in the statements which would assist in the cross examination of the witnesses. He simply wished to arm himself with whatever material was available in case the occasion arose at which it might prove useful. 25. It seems to me that in such circumstances the issue of the subpoena could only be described as "fishing", and the subpoena was properly struck out as an abuse of process. 26. Although Rule 21.04 dealing with the provision to the defence of a summary of evidence, for the reasons which I have given, must be taken to apply only to cases proceeding on an information, in the case of all matters, including matters proceeding on complaint, the Court may exercise the powers conferred on it by Rule 8.07 which provides: "The Court may, at any time, of its own motion on notice to the parties review the progress of proceedings and make such orders or give such directions to lead to their efficient and timely disposal and make such orders concerning time defaults committed by any party as it may consider just and expedient." 27. Directions given pursuant to that rule might well oblige the complainant in a matter proceeding simply by way of complaint, and not by information, to furnish some sort of summary of evidence as part of the process of defining the issues ahead of the hearing. 28. For the reasons I have given, it seems to me that the pre-trial procedures contained in the Summary Procedure Act and the Magistrates Court rules draw a clear distinction between what is thought appropriate by way of pre-trial discovery on the one hand, in cases proceeding by way of preliminary hearing, and those which are to be tried summarily. In cases of the latter kind, I am unable to accept the contention of the plaintiff that there is an obligation on the prosecution to disclose, enforceable if necessary by subpoena, the statements of the witnesses it proposes to call, or other material of the kind sought in the subpoena in question in this case. Resort to the pre-trial procedures laid down in the Act and Rules should result in a situation where the defendant is put fairly on notice as to the case which he or she faces. Complete disclosure of the police brief in such cases is not called for, and would place an unreasonable burden on prosecuting authorities in matters proceeding summarily. 29. The application is dismissed. I will hear the parties as to costs.