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 (30 September 1993)

  
  
  
  
  
  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] HCA 19;  (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] HCA 19;  (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.