Klobucar v Curtis & Anor [2009] ACTSC 17 (19 February 2009)

Last Updated: 16 March 2009

ANDROS STEVE KLOBUCAR v SCOTT MARTIN CURTIS & ANOR

[2009] ACTSC 17 (19 FEBRUARY 2009)

EX TEMPORE JUDGMENT

No. SC 782 of 2008

Judge: Higgins CJ

Supreme Court of the ACT

Date: 19 February 2009

IN THE SUPREME COURT OF THE )

) No. SC 782 of 2008

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ANDROS STEVE KLOBUCAR

Plaintiff

AND: SCOTT MARTIN CURTIS

First Defendant

AND: ACT MAGISTRATES COURT

Second Defendant

ORDER

Judge: Higgins CJ

Date: 19 February 2009

Place: Canberra

THE COURT ORDERS THAT:

1. The matter be remitted to the Magistrates Court to be heard according to law.

2. The plaintiff have the costs of this proceeding against the first defendant.

3. The question of the costs of the proceedings before the learned magistrate be reserved, to be decided on written submissions.

4. The bail conditions the plaintiff was placed on prior to the hearing before the learned magistrate continue.

1. This matter arose out of a charge against the plaintiff of procuring one Yarusul Silkeci to traffic in a controlled drug other than cannabis, namely methamphetamine. A transcript of those proceedings is annexed to the affidavit of Ms Mylecharane. That reveals that it was the position of the defendant in those proceedings, the plaintiff in these, that he wished to consent to summary disposal of the matter. It is quite clear that the learned magistrate undertaking the proceedings had a discretion exercisable at the conclusion of the prosecution case, either, to act on that consent and proceed summarily, or decline to act on that consent and proceed with the committal proceedings.

2. In either case, it would have been open to the plaintiff to have adduced evidence to persuade her Honour from whatever course adverse to the plaintiff might otherwise have been taken. The matter did not proceed quite in that way. After hearing submissions from both Mr Gill, urging that she should effectively dismiss the proceedings to that point, and from Mr Cauchi, that her Honour should proceed with the committal and find that there was a prima facie case, her Honour found that there was indeed a prima facie case.

3. That decision seems to have been based on a submission from Mr Cauchi to the effect that there was other evidence which he could have called had he, in effect, had it available to him in those proceedings which would have satisfied her Honour that there was a prima facie case. Clearly, that is erroneous and the committal order was therefore made on a basis that was indeed erroneous.

4. I do not find any error in the way her Honour approached the question as to whether summary jurisdiction should, or should not, be exercised. Her Honour was not obliged to find that she should exercise summary jurisdiction at the time that Mr Gill submitted she should, at the end of the prosecution case. She was not, indeed, required to hear the prosecution on that point, and some of the matters referred to by Mr Cauchi would have validly gone to that discretion, such as what his expectation was, what the preparation of the case was, and so on.

5. In the result, the application of the plaintiff that the committal order ought not to have been made must be upheld. It was made erroneously. The next question is what follows from that, and I think what follows from that is that the matter must be remitted to the Magistrates Court, to be heard according to law. There is no utility in an order simply discharging the information because other information can, of course, be proffered. There is no statute of limitations in respect of this charge and it would be futile to do otherwise. I make no order other than that.

6. I next proceed to the costs of the application, and the costs of the proceedings before the learned magistrate. As far as the costs of this application are concerned, it is quite clear that the plaintiff has succeeded. The plaintiff needed to bring these proceedings in order to have the committal quashed, and that has happened, so the plaintiff should have the costs of the proceedings in this court against the first defendant.

7. So far as the costs of the proceedings before the learned magistrate is concerned, it has already been indicated there is an argument which might be made about that, and for that reason I reserve the question of the costs of those proceedings and grant the parties leave to bring in written submissions on that aspect. The first defendant has 14 days to formulate and serve, file written submissions and the plaintiff to have seven days within which to respond.

8. I make a declaration that the bail conditions upon which Mr Klobucar was placed prior to the hearing before the learned magistrate will remain the bail conditions now

in force. Of course, you have the permission of the court, Mr Chilcott, to uplift the indictment and other documents that the prosecutor has filed.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, the Chief Justice.

Associate:

Date: 5 March 2009

Counsel for the plaintiff: Mr S Gill

Solicitor for the plaintiff: Kamy Saeedi Lawyers

Counsel for the first defendant: Mr M Chilcott

Solicitor for the first defendant: Director of Public Prosecutions (ACT)

Date of hearing: 19 February 2009

Date of judgment: 19 February 2009