CHRISTOV v MICHAEL PRICE LCM [1999] NSWSC 1264

New South Wales Supreme Court CITATION : CHRISTOV v MICHAEL PRICE LCM [1999] NSWSC 1264 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 11171/99 HEARING DATE(S) : 15/06/99 JUDGMENT DATE : 15 June 1999

PARTIES : Ivan Christov (Plaintiff) Mr Michael Price (LCM) (Defendant) JUDGMENT OF : Adams J at 1

LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Mr Michael Price (LCM)

COUNSEL : Plaintiff in person Ms H Langley (Solicitor) SOLICITORS : Plaintiff in person C Smith (Acting solicitors for Public Prosecutions) (Defendant) CATCHWORDS : Declaration; Justices Act 1902; impending trial; ground justifying intervention not shown; refused ACTS CITED : Justices Act 1902 Crimes Act 1900 Waterhouse v Gilmore (1998) 12 NSWLR 270 Hakija Sinanovic v DPP (unreported, Supreme Court of NSW, Ireland J, 20 October 1997) CASES CITED : Sergi v DPP (unreported, NSWCCA, 10 September 1991) Yates v Wilson 168 CLR 338 Basha (1989) 39 ACR 337 DECISION : Summons dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J TUESDAY 15 JUNE 1999 11171/99

IVAN CHRISTOV v MICHAEL PRICE LCM & ANOR JUDGMENT

1 HIS HONOUR: On 9 April 1998 the plaintiff was charged with a number of offences arising from the alleged sexual assaults committed by him on a much younger complainant in her residence. Those offences are extremely serious. 2 On 14 May 1998 a further eight offences were charged against him involving the same complainant. Again this second set of charges were very serious. 3 On 20 and 22 July 1998 committal proceedings were listed for September that year and the learned Local Court Magistrate determined applications made by the plaintiff to have a number of witnesses called. Those determinations were made under s48E of the Justices Act 1902 and were refused except as to two police officers. 4 Following a number of adjournments of the proceedings which commenced on 3 September 1998 the plaintiff was committed to stand trial on 3 March 1999. On 16 March 1999 the Director of Public Prosecutions was advised by the Legal Aid Commission that legal aid had been granted to the plaintiff in respect of his impending appearance in the District Court upon the charges for which he had been committed for trial. 5 On 28 April 1999 a bill of indictment was found against him in respect of a number of charges including offences under ss60(1), 90A and 61J(1) of the Crimes Act 1900. On 30 April 1999 the plaintiff was arraigned and pleaded not guilty. The trial is listed for mention before the District Court on 30 July 1999 and fixed to commence on 16 August 1999. 6 The plaintiff commenced proceedings in this Court seeking relief with respect to the Magistrate's decision as to the calling of witnesses on 17 May 1999. There is a limitation in the character of the relief which can be sought in these circumstances (see Waterhouse v Gilmore (1998) 12 NSWLR 270; Hakija Sinanovic v DPP (unreported, Supreme Court of New South Wales, Ireland J, 20 October 1997)). 7 It is obvious from the chronology which I have briefly set out above that there has been a substantial delay by the plaintiff in bringing these proceedings. There are many judicial statements about the undesirability of fragmentation of the criminal process by proceedings of this kind (see, for example, Sergi v DPP (unreported, New South Wales Court of Appeal, 10 September 1991) and Yates v Wilson 168 CLR 338). 8 On the face of it, the District Court can deal with any unfairness which might result to the plaintiff arising from the omission of the opportunity to cross-examine the material witnesses, including the complainant (see Basha (1989) 39 ACR 337). 9 An appropriate application can be made at the impending mention. It is obvious that to grant a declaration which might have the result of requiring either a fresh committal proceeding or reopening of those already conducted will have the effect of substantial and undesirable delaying the trial of the plaintiff. 10 As, in my view, the District Court has, in the particular circumstances of this case, ample power to prevent any injustice that might be occasioned by the omission of the cross-examination of the witnesses in question and having regard to the delay this is not a case in which the Court's discretion to grant a declaration or even mandamus should be exercised, even if a prima facie case for its exercise had been demonstrated. 11 I have nevertheless read carefully the evidence of the witnesses subject to the application under s48 E of the Justices Act and the reasons given by the learned Magistrate. I have also carefully considered the submissions made in writing by the plaintiff which exhibit both familiarity with the evidence and with the relevant principles of law. The plaintiff in those submissions, extended by oral submissions made in the present hearing, does not identify any errors of law which would justify interference by this Court in the decision below. 12 My independent consideration of the statements and of the reasons for refusing the application has left me with the view that the Magistrate did not err, although it must be said that there was a proper basis for granting the application if he had been so minded. However, different minds may weigh differently the various circumstances to which a tribunal is directed by virtue of the legislative scheme and I do not consider that the Magistrate erred in any way which could or should give rise to the exercise by this Court of its supervisory function. 13 Accordingly the application is dismissed with costs. *******************