JAMES ROSS ARMITAGE In Person [2025] SASC 30

Applicant: JAMES ROSS ARMITAGE In Person Respondent: MAGISTRATES COURT OF SOUTH AUSTRALIA No Attendance Interested Party: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Counsel: MR C WEIR - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 03/02/2025 File No/s: CIV-24-009477 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Judicial Review) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. ARMITAGE v MAGISTRATES COURT OF SOUTH AUSTRALIA [2025] SASC 30 Judgment of the Honourable Justice B Doyle 20 March 2025 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - JUDICIAL REVIEW ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - EVIDENCE ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS By information filed on 25 July 2022, the applicant was charged with two counts of being on premises for an unlawful purpose (contrary to s 17(1) of the Summary Offences Act 1953 (SA)), two counts of causing damage to property and two counts of theft (contrary to ss 85(3) and 134 of the Criminal Law Consolidation Act 1935 (SA)) respectively. The applicant challenges an order by a magistrate committing him to trial on those charges in the District Court of South Australia. The applicant also seeks an order of mandamus, commanding the Magistrates Court to reconsider whether the applicant should be committed to trial according to law. The applicant contended that there had not been a tender of evidence as required by s 114(1)(a) of the Criminal Procedure Act 1921 (SA) (‘CP Act’), vitiating the evaluation required by s 115 of the CP Act. Held, dismissing the application for judicial review: 1. There had been evidence tendered at the committal proceedings and to the extent there was any lack of clarity about the scope of the material the subject of the tender, there was nevertheless substantial compliance with ss 114 and 115 of the CP Act. 2. Jurisdictional error was not established and there were also matters that would have militated against exercising any discretion to set aside the committal order. -- 1 of 22 -- Criminal Law Consolidation Act 1935 (SA) ss 85(3), 134; Criminal Procedure Act 1921 (SA) rr 73.1(4), 82.1(7), 82.2(4), 82.2(5), 82.3(5), 82.3(5) 87.3(2), 133.4; Justices Act 1921 (SA) s 106(6); Legislation Interpretation Act 2021 (SA) s 14; Summary Offences Act 1953 (SA) s 17(1); Summary Procedure Act 1921 (SA) s 106; Uniform Civil Rules 2020 (SA) r 218.4, referred to. Armitage v Magistrates Court of South Australia [2024] SASC 141, applied. F, BV v Magistrates Court of South Australia (2013) 115 SASR 232; Shannon v Ackland (1990) 55 SASR 125, distinguished. Clayton v Ralphs (1987) 45 SASR 347; Goldsmith v Newman (1992) 59 SASR 404; Mountford v Magistrates Court of South Australia (2006) 95 SASR 103; R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; Stanley v Director of Public Prosecutions (NSW) (2023) 278 CLR 1, considered. -- 2 of 22 -- ARMITAGE v MAGISTRATES COURT OF SOUTH AUSTRALIA [2025] SASC 30 Civil: Application for Judicial Review 1 B DOYLE J: By originating application for judicial review the applicant challenges an order by a magistrate committing him to trial in the District Court of South Australia. 2 The essential ground relied upon by the applicant in his Statement of Facts, Issues and Contentions (‘SFIC’)1 was that the prosecution did not tender any evidence against him. It was contended that having regard to the requirements of Division 3 (‘Committal proceedings’) of Part 5 (‘Indictable offences’) of the Criminal Procedure Act 1921 (SA) (‘CP Act’), the only course open to the Magistrate was to reject the information. 3 The applicant contends that the order committing him for trial should be set aside and also seeks an order in the nature of mandamus commanding the Magistrates Court to reconsider whether the applicant should be committed to trial according to law. 4 As will be explained, in the course of argument, the applicant advanced a variant on the simple proposition that no evidence against him was tendered. In the applicant’s submission, the global and imprecise way in which the prosecutor sought to tender evidence in order to establish that there was a case to answer had the consequence that it could not be said that identified or identifiable evidence was tendered within the meaning of s 114 of the CP Act. Relatedly, the applicant contends that the way in which the purported tender occurred deprived him of the capacity to object to the receipt of documents and rendered the evaluation of ‘the evidence’ contemplated by s 115 of the CP Act impossible. 5 For the reasons that follow, the application for judicial review must be dismissed. The prosecution did tender evidence during the hearing of a ‘no case’ application before the magistrate. Whether or not it was clear that every document in the committal brief was tendered, the magistrate considered evidence which was encompassed by the global tender sufficient to put the applicant on trial. It has not been argued that that conclusion was not legally open, and nor has it been argued or demonstrated that any of that evidence was ‘plainly inadmissible’ within the meaning of s 115(1)(b) of the CP Act. The order committing the applicant for trial was not infected by jurisdictional error, and even if it was, there would be powerful discretionary considerations militating against a grant of relief. 1 FDN 1. -- 3 of 22 -- [2025] SASC 30 B Doyle J 2 Background 6 By information filed on 25 July 2022, the applicant was charged with having committed seven offences. The seventh count was withdrawn on 10 October 2023 and can be ignored. The remaining six charges fall into two categories. 7 First, it is alleged that on 1 May 2022, the applicant entered the premises of Ace Dental at 448 Payneham Road, Glynde for an unlawful purpose (count 1).2 It is alleged that without lawful excuse and intending to damage property, the applicant damaged a gate the property of Ace Dental amounting to damage of no more than $2,500 (count 2).3 The applicant is further alleged to have committed theft by taking an air compressor of a value involving $30,000 or less but more than $2,500, without the consent of its owner Ace Dental and intending permanently to deprive it of the property or to make a serious encroachment on its proprietary rights (count 3).4 8 Secondly, it is alleged that on 2 May 2022, the applicant entered the premises of Portrush Family Dental at 32 Portrush Road, Payneham, for an unlawful purpose (count 4).5 It is alleged that without lawful excuse and intending to damage property, the applicant damaged a gate the property of Portrush Family Dental amounting to damage of no more than $2,500 (count 5).6 The applicant is further alleged to have committed theft by taking an air compressor of a value involving $30,000 or less but more than $2,500, without the consent of Portrush Family Dental and intending permanently to deprive it of the property or to make a serious encroachment on its property rights (count 6).7 9 On 21 March 2023, the applicant belatedly filed an election for trial in the District Court of South Australia.8 The record of proceedings in the Magistrates Court indicates that the matter was first in the committal list in that Court on 15 August 2023 when a charge determination date was set. 10 A charge determination was made on 10 October 2023 and the matter was remanded to an answer charge hearing on 9 January 2024. 11 On 2 January 2024, the applicant gave notice of an intention to contend that there was no case to answer. That application was listed for hearing on 20 March 2024. In connection with that application, the Commissioner of Police filed written submissions dated 18 March 2024. Those submissions briefly identified 2 Contrary to s 17(1) of the Summary Offences Act 1953 (SA) (‘SO Act’). 3 Contrary to s 85(3) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). 4 Contrary to CLCA, s 134. 5 Contrary to SO Act, s 17(1). 6 Contrary to CLCA, s 85(3). 7 Contrary to CLCA, s 134. 8 Rule 73.1(4) of the Joint Criminal Rules 2022 (SA) contemplated that an election must be filed by the second hearing of the Information. That did not occur but no party suggests anything ultimately turns on the delay. There was some delay in the progress of the matter in the early stages of the proceeding, including for the purpose of negotiations and to allow the applicant to pursue legal representation. -- 4 of 22 -- [2025] SASC 30 B Doyle J 3 the aspects of the evidence relied upon as part of a circumstantial case in respect of the various counts. The hearing was later rescheduled for 17 April 2024. 12 The record of outcome for the hearing on 17 April 2024 records that no case submissions were made and that the Court found a case to answer. However, rather than make an order for committal immediately, the applicant was given an opportunity to consider whether he wished to withdraw his election. The matter was adjourned to 2 May 2024. On that occasion, the Court committed the applicant for trial on the information and the applicant was remanded for a not guilty plea arraignment in the District Court on 26 July 2024. An information was filed in that Court on 10 July 2024, to which I will return. Otherwise, because of these judicial review proceedings, there has been no substantial progress of the matter in that Court. The application for judicial review 13 The applicant filed these judicial review proceedings on 4 October 2024. He alleged that the prosecution did not tender any evidence during committal proceedings in the Magistrates Court, which he asserted was contrary to Part 5 Division 3 of the CP Act. 14 In his affidavit in support of the proceeding,9 the applicant relied upon email correspondence between him and registry staff of the Adelaide Magistrates Court. In the course of that correspondence, the applicant requested transcript of hearings on 11 April 2024, 17 April 2024 and 2 May 2024. He received a response indicating that transcript was not available for those hearings and that the rule is that transcript is only for ‘trial dates, or if evidence was tendered in the court’. By email sent on 3 May 2024, the applicant then wrote: The hearing on the 2nd May was a committal answer charge, on this day a plea of not guilty was entered and the defendant was committed to trial in the district court. Prosecution would have been required to tender evidence relied upon and I believe there was evidence tendered. If you could confirm please, thank you. 15 The response from a Courts Administration Officer sent on 10 May 2024 stated, inter alia: Please find Record of Outcome attached. This is the document where evidence tendered would be communicated. There is no such communication. 16 It is in apparent reliance upon these communications that the applicant contended that no evidence was tendered during the course of the committal proceeding in the Magistrates Court. 17 At the first hearing in this Court, I made an order joining the Director of Public Prosecutions as an interested party, and the Director conducted the defence 9 FDN 2. -- 5 of 22 -- [2025] SASC 30 B Doyle J 4 of the action. The respondent did not play any active part in the judicial review proceeding.10 18 The Director filed a response to the applicant’s SFIC.11 That response contained a recitation of the procedural history of the matter in the Magistrates Court. The Director contended that at the hearing on 17 April 2024, counsel for the prosecution had tendered the statements that had been filed with the court and disks containing CCTV footage, and that following submissions by counsel for the prosecution and the applicant, the magistrate found a case to answer. 19 The Director contended that the essential factual premise for the applicant’s claim of jurisdictional error was wrong. In the alternative, the Director submitted that all of the materials relied upon were before the Court and the magistrate considered the evidence for the purpose of determining whether it was sufficient to put the applicant on trial for an offence in accordance with s 113(2)(c)(ii) of the CP Act. It was contended that the magistrate complied with Rule 87.3(2) of the Joint Criminal Rules 2022 (SA), in that the Court proceeded to hear and determine whether the defendant to the proceeding should be committed for trial. 20 Additionally, the Director emphasised that the grant of relief in an action for judicial review is discretionary and contended that because deficiencies in the committal process can be cured in the trial court, relief should be withheld even if jurisdictional error were to be demonstrated. 21 The Director filed and relied upon an affidavit of Emma Jane Shaw made on 22 November 202412 which, inter alia, stated that the Director had requested the production of transcript of the hearings of 17 April 2024 and 2 May 2024. Those transcripts were annexed to the affidavit. 22 Relevantly, the following exchange occurred regarding the evidence upon which the prosecutor relied during the no case to answer argument on 17 April 2024. MS SHAW: I rely on the outline prepared by Mr Schapel, that you’ve just made reference to. I formally tender the statements that have been filed. HIS HONOUR: I don’t think you need to do that in the sense that they are before the court of their own – I suppose – on the fact they are filed. MS SHAW: Perhaps I’m just a little old fashioned your Honour. HIS HONOUR: No I – MS SHAW: – I take your Honour’s – 10 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36 (Gibbs, Stephen, Mason, Aickin and Wilson JJ). 11 FDN 10. 12 FDN 11. -- 6 of 22 -- [2025] SASC 30 B Doyle J 5 HIS HONOUR: Sorry I’m trying to stretch my memory back to those days and I think we’ll note they’re tendered, what that really means in the end I don’t know, they are tendered on the argument. MS SHAW: Yes. Has your Honour had an opportunity to review that material. HIS HONOUR: Yes, I have. MS SHAW: There are two extra materials both of which have been provided to Mr Armitage that will assist your honour in your assessment of this matter and that’s a copy of the closed-circuit television from the Portrush Family Dental Practice as well as a copy of the CCTV from the Ace Dental Practice. I will take your Honour through that but no doubt your Honour will gain assistance from those. I will hand them to your clerk. HIS HONOUR: Mr Armitage have you got copies of those – the images on those discs. DEFENDANT: I do your Honour, yes. HIS HONOUR: Alright thank you. I’ll receive those in so far as it is necessary. But they’re part of the exhibits in any event aren’t they. MS SHAW: They are part of the exhibits but they will assist your Honour. HIS HONOUR: I accept that. MS SHAW: In assessing whether there’s a case to answer. HIS HONOUR: Alright, so they are in effect in evidence in any event. MS SHAW: I formally tender those now your Honour. I don’t think the – HIS HONOUR: I’ll make the same notation. MS SHAW: - Ace CCTV footage is, I know that was provided to Mr Armitage by Mr Schapel via email and I took the liberty of burning a copy of it this morning to provide it to the court in the event it hadn’t been formally filed. More out of an abundance of caution your Honour. 23 In an exchange that followed, the applicant raised the prospect of objections to the material. The magistrate invited the applicant to tell him what document or piece of real evidence the objection related to and what the objection was. The applicant referred to the fact that count 7 had been withdrawn but that some of the content of the statements related to that count. The magistrate indicated that he would simply ignore material relevant only to that count. The only other matter raised by the applicant was that some items were said to be ‘listed twice’ in the brief. 24 The affidavit of Ms Shaw explained that a number of ‘Form 71e Evidentiary Material Briefs’ had been filed in the Magistrates Court: (1) an Evidentiary Material Brief (which was stated to be a ‘preliminary brief’) on 4 January 2024 (FDN 20); -- 7 of 22 -- [2025] SASC 30 B Doyle J 6 (2) Evidentiary Material Brief – Revision 1 (identified as a ‘committal brief’) on 8 January 2024 (FDN 23); (3) Evidentiary Material Brief – Revision 2 (also identified as a ‘committal brief’) on 18 March 2024 (FDN 32); and (4) Evidentiary Material Brief – Revision 3 (also identified as a ‘committal brief’) on 9 April 2024 (FDN 40). 25 The index to each brief replicated the material listed in the earlier briefs, with the new material included in a subsequent brief designated in bold text.13 The substantive content of the last brief (‘Revision 3’) is reproduced below: Number Family Name/Given Name(s) Date Electronic attachment to witness statement (insert Y is yes) 1. ANGELOPOULOS, Mary 27/05/2022 Y 2. COPPER, Michael 01/12/2022 Y 3. ARMSTRONG, Noel 13/11/2022 Y 4. FREYTAG, Richard 02/06/2022 Y 5. HILL, Hannah Georgia 22/06/2923 Y 6. MCKENZIE, Thomas Matthew 22/09/2022 Y 7. PRIEST, Samuel James 23/11/2022 Y 8. KOUMOULAS, Sue 08/10/2023 Y 9. ANGELOPOULOS, Mary 19/03/2024 Number Object / Material Identification Mark Electronic form (insert Y is yes) 1. Referred to in the statement of Michael Copper Annexure A Y 2. Referred to in the statement of Hannah Georgia Hill PBJ01 3. Election for Trial in District Court Y 4. Exhibits Log x 2 Y 5. Images – Wig, Clothing and Storage Y 6. Image – Dental Compressor Y 7. Invoice Compressor Install Y 8. Invoice Compressor Replacement Y 13 That was consistent with Rules 82.1(7), 82.2(4), 82.2(5), 82.3(5) and 82.3(5) of the Joint Criminal Rules 2022 (SA). -- 8 of 22 -- [2025] SASC 30 B Doyle J 7 9. Invoice Property Damage Repair Y 10. Invoice Locksmith & Dental Equipment Y 11. Images – Clothing and Items Y 12. CCTV Images Y 13. Referred to in the statement of Samuel James Priest (FS1 – FS9) PB1 Y 14. Referred to in the statement of Samuel James Priest (AS1 – AS3) PB2 Y 15. Disc – ROI 16. Disc – Arrest Rights 17. Disc – Video Walk Thru – 4 Fourth St Tranmere (FS-10) 18. Disc – Photos 19. Referred to in the statement of Hannah Georgia Hill (PBJ01) PBJ01 20. Referred to in the statement of Mary Angelopoulos (Annexure A) Annexure A Interlocutory applications 26 The hearing of the judicial review application was originally listed for 20 December 2024. 27 On 3 December 2024, the applicant filed an interlocutory application seeking permission to amend his SFIC and orders for production of documents against the respondent, in terms described in an accompanying affidavit of the applicant. The affidavit set out a number of documents of which production was sought, the last of which was a ‘Copy of any Court Record identifying evidentiary material tendered on the 17th April 2024 pursuant to s 114(1) of the [CP Act]’.14 28 On the return of that application it was accepted that, save for that last category, the respondent had satisfactorily provided the documents requested. As to the last category, the applicant submitted that he wanted the court to make an order for the respondent to provide the documentation it possesses that records all the material that was tendered and ‘identification marks of those documents and/or any exhibits’.15 He stated that his position was that the evidentiary material briefs that were provided were not sufficient to identify the material. In circumstances where the Magistrates Court had produced all existing records of the proceeding, the applicant was in effect wanting the Court to order that the Magistrates Court create a new document addressing the (potentially contentious) question of which 14 FDN 13. The interlocutory application was supported by an affidavit of the applicant sworn on 3 December 2024 (FDN 14). 15 Transcript of Proceedings, Armitage v Magistrates Court of South Australia (Supreme Court of South Australia, Justice B Doyle, 9 December 2024) p 5 (‘Transcript of Proceedings’). -- 9 of 22 -- [2025] SASC 30 B Doyle J 8 documents were, from the Court’s perspective, tendered before it. I considered that the application was therefore not truly an application for discovery or production but was more in the nature of an interrogatory. 29 However, during the hearing, Ms Cattonar, who appeared for the Magistrates Court, indicated that her instructions at that time did not permit her to be definitive, by reference to the four evidentiary brief indices, as to which documents had been in the Court’s custody, and therefore might have been encompassed within any tender of evidence by the prosecutor. I was not persuaded that it was necessary for me to make any order or direction to address this issue, however, Ms Cattonar undertook to take further instructions with a view to filing an affidavit that deposed to the records that the Magistrates Court considered it had corresponding to the evidentiary briefs filed. I directed that the respondent had permission to file an affidavit deposing to the extent of the documents and other evidentiary material held by it including with reference to the listed items in the evidentiary briefs.16 30 On 11 December 2024, the Acting Deputy Criminal Registrar of the Magistrates Court, Ms Sharryn Kis, swore and filed an affidavit pertaining to that issue.17 Ms Kis’ affidavit explained that in the ordinary course, most evidential materials, such as statements and photos are filed by the Director in the Magistrates Court by uploading the documents through the Courts Administration Authority portal prior to committal. Some physical evidential materials such as CDs are physically delivered to the Registry. The magistrates have access to the portal to be able to read and examine all evidential material that has been uploaded. Upon committal, a copy of the electronic evidential material is sent to the higher court to which the defendant has been committed for trial or sentence and all physical evidential material is also sent to the higher court (with no copy being retained by the Magistrates Court). 31 Ms Kis’ affidavit explains that, in the present case: (1) each of the nine statements listed in the first table of Revision 3 was uploaded onto the portal at the time that the relevant iteration of the brief containing the item was filed; (2) in relation to the second table of Revision 3, save for items 15-18, which were physically delivered to the Magistrates Court and are no longer in its possession, each item was uploaded onto the portal at the time that the relevant iteration of the brief containing the item was filed. 32 Ms Kis’ affidavit exhibits the material that was uploaded onto the portal, corresponding to all items in Revision 3 apart from items 15-18 of the second table. I have reviewed this material, and conclude that it is possible to relate the content to the item numbers. 16 Transcript of Proceedings, p 22. 17 FDN 16. -- 10 of 22 -- [2025] SASC 30 B Doyle J 9 33 The affidavit also confirmed that apart from the certificate of record and transcript already produced by the Court, there were no other documents or records that evidenced the orders made by the Court. 34 By interlocutory application filed on 18 December 2024,18 the applicant sought an order ‘similar to the one sought’ in his earlier interlocutory application, being an order ‘for the official record of any documents/exhibits tendered into evidence show [sic] for each exhibit, the exhibit/MFI number, a description of the evidence and the page and line of the transcript which was admitted into evidence in the form of a list of documents, held by the Magistrates Court in matter AMC- 22-7021 including any information held by the Registrar for the file information exhibits/documents transferred to the District Court for file AMC-22-7021’. He also sought an extension of time within which to file submissions and any further evidence following compliance by the respondent with such an order. The application also stated that he ‘withdraws [the] application to amend the Facts Issues and Contentions’. 35 The applicant’s affidavit in support of the interlocutory application19 was a lengthy document, largely in the nature of a submission. Amongst other things it complained that the front page of Ms Kis’ affidavit, which contained no substantive content, had not been signed by her or witnessed. Various complaints were also made about the content of Ms Kis’ affidavit, suggesting that it was constructed with a design to distort the truth. 36 I considered the application at the commencement of the hearing on 20 December 2024. In developing his submissions in support of the primary order sought in his interlocutory application, the applicant argued that the descriptions given in the Evidentiary Material Brief indices were unrevealing and that there was an unsatisfactory ambiguity attending the question of what evidence the magistrate may have considered in rejecting the no case to answer submission and deciding that the applicant should be committed for trial in the District Court on the charges in the information. He also contended that the way in which the documents had been described had jeopardised his ability to challenge the relevance and admissibility of documents. 37 In the course of argument I indicated to the applicant that the substantive complaints being foreshadowed, and being put forward as a justification for the interlocutory relief, were not arguments made in his SFIC, which simply asserted that no evidence was tendered by the prosecution. I also repeated the concern I had previously expressed that an order, directed to the Magistrates Court, requiring it to be more specific about the evidentiary items that had been received on the application, was akin to an interrogatory which I would not regard as appropriate to permit. I dismissed the interlocutory application, giving brief reasons 18 FDN 18. 19 FDN 19. -- 11 of 22 -- [2025] SASC 30 B Doyle J 10 supplementing the matters I had raised with the applicant in the course of argument. 38 The applicant flagged an intention to appeal my decision. Separately, the applicant requested the opportunity to amend his SFIC so as to capture his argument, which he contended was broader than that currently spelled out in the SFIC. Whilst foreshadowing the response that the foreshadowed arguments would not, even if made out, involve jurisdictional error, or might result in relief being withheld on discretionary grounds in any case, the Director did not oppose an adjournment for the purpose of allowing the applicant to formulate any amendments. 39 I granted the applicant the opportunity to amend his SFIC by no later than 24 January 2025. The applicant said he believed that would give him sufficient time. The hearing of the application was listed for 3 February 2025 at 10.15 am. 40 Some time after I made those orders the applicant requested reasons for my refusal of his interlocutory application. I considered that it was unnecessary and inappropriate for me to supplement the reasons appearing from the transcript of the hearing and this was communicated to the applicant. 41 On 24 January 2025, the applicant requested a ‘short extension of time’ within which to file his revised SFIC and any further written submissions. There being no opposition from the Director to me doing so, I extended the time within which the applicant was to attend to these matters to the close of business on 28 January 2025. 42 The applicant did not file any further material. Committal proceedings and judicial review 43 The procedure governing the charging of indictable offences is set out in Part 5 of the CP Act. Whilst the Director is empowered to present an information in respect of an indictable offence to the Supreme or District Court, the more common course is that an information charging an indictable offence is filed in the Magistrates Court. The pre-committal phase and, in respect of major indictable or minor indictable offences where the defendant has elected for trial in a superior court, the committal phase of proceedings in the Magistrates Court, are governed by Divisions 2 and 3 respectively of that Part. 44 In the case of a defendant who has pleaded not guilty at a committal appearance, and where the matter is to proceed to an answer charge hearing, s 111 requires that the prosecutor file in the Magistrates Court a ‘committal brief’, containing, inter alia, statements of witnesses for the prosecution or other documents on which the prosecutor relies as tending to establish the guilt of the defendant, and other material relevant to the charge (whether relevant to the prosecution or defence case) available to the prosecution save for material exempt from production by virtue of privilege or some other reason. The brief need not -- 12 of 22 -- [2025] SASC 30 B Doyle J 11 replicate material that has already been included in a ‘preliminary brief’20 filed in the Magistrates Court.21 The brief must be updated as soon as practicable after new material required to be included comes into a prosecutor’s possession.22 Copies of the material in the committal brief are to be provided to the defendant or their legal practitioner as soon as practicable after it is so filed.23 45 A defendant may file a notice indicating that they intend to assert that there is no case to answer on the charge in committal proceedings.24 The process that then applies, and applies in any event where a defendant does not admit a charge in committal proceedings,25 unless a legal practitioner who represents the defendant concedes that there is a case to answer,26 is laid out in ss 114 and 115 of the CP Act. Those sections provide as follows. 114—Taking evidence at committal proceedings (1) Where a charge is not admitted by a defendant in committal proceedings, the following procedure applies: (a) the prosecutor will tender the statements and other material filed in the Court as part of the committal brief and the Court will, subject to any objections as to admissibility upheld by the Court, admit them in evidence; (b) the prosecutor will call a witness whose statement has been filed in the Court as part of the committal brief for oral examination if— (i) the defendant has filed and given to the prosecution a notice in accordance with section 112(2) indicating that the defendant required production of that witness; and (ii) the Court grants permission to call that witness for oral examination; (c) the prosecutor may, with the permission of the Court, call oral evidence in support of the case for the prosecution; (d) if the defendant has filed and given to the prosecution a notice in accordance with section 112(1) indicating that the defendant intends to assert that there is no case to answer on the charge—the defendant may give or call evidence, or make submissions, in support of that assertion; (e) the prosecutor may call evidence in rebuttal of evidence given for the defence. (2) The Court will not grant permission to call a witness for oral examination under subsection (1) unless it is satisfied that there are special reasons for doing so. 20 The ‘preliminary brief’ is the brief of evidence provided to the Director by SA Police in order for the Director to make a ‘charge determination’ as to the appropriate charges to proceed: CP Act, s 106. 21 CP Act, s 111(1), Armitage v Magistrates Court of South Australia [2024] SASC 141 at [36] (McDonald J). 22 CP Act, s 111(2). 23 CP Act, s 111(3). 24 CP Act, s 112(1). 25 CP Act, s 113(2)(c)(ii). 26 CP Act, s 113(3). -- 13 of 22 -- [2025] SASC 30 B Doyle J 12 (3) In determining whether special reasons exist for granting permission to call a witness for oral examination, the Court must have regard to— (a) the need to ensure that the case for the prosecution is adequately disclosed; and (b) the need to ensure that the issues for trial are adequately defined; and (c) the Court's need to ensure (subject to this Act) that the evidence is sufficient to put the defendant on trial; and (d) the interests of justice, but if the witness is the victim of an alleged sexual offence, the victim of an alleged offence involving domestic abuse (within the meaning of the Intervention Orders (Prevention of Abuse) Act 2009), a person with a cognitive impairment that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions or a child of or under the age of 14 years, the Court must not grant permission unless satisfied that the interests of justice cannot be adequately served except by doing so. (4) If a witness is called for oral examination the usual oath will be administered (unless the witness is not liable to the obligation of an oath) and the witness will be examined, cross-examined and re-examined in the usual manner. 115—Evaluation of evidence at committal proceedings (1) The following principles govern the Magistrates Court's approach to evidence in committal proceedings: (a) evidence will be regarded as sufficient to put the defendant on trial for an offence if, in the opinion of the Court, the evidence, if accepted, would prove every element of the offence; (b) although the Court may reject evidence if it is plainly inadmissible, the Court will, if it appears that arguments of substance can be advanced for the admission of evidence, admit the evidence for the purpose of the committal proceedings, reserving any dispute as to its admissibility for determination by the court of trial. (2) If the Magistrates Court, after completing its consideration of the evidence, is of the opinion that the evidence is not sufficient to put the defendant on trial for any offence, the Court will— (a) reject the information; and (b) if the defendant is in custody on the charges contained in the information (and for no extraneous reason)—order that the defendant be discharged from custody. (3) If, after completing consideration of the evidence, the Magistrates Court is of the opinion that the evidence is sufficient to put the defendant on trial for an offence— (a) the Court will review the charges, as laid in the information, in order to ensure that they properly correspond to the offences for which there is, in the opinion -- 14 of 22 -- [2025] SASC 30 B Doyle J 13 of the Court, sufficient evidence to put the defendant on trial and make any necessary amendment to the information; and (b) following the review of the charges— (i) if the defendant stands charged with a major indictable offence—the Court will commit the defendant to a superior court for trial; (ii) if the defendant stands charged with a minor indictable offence but with no major indictable offence—the Court will, if the defendant has not previously elected for trial by a superior court on that charge, allow the defendant a reasonable opportunity to do so and, if the defendant does so elect, will commit the defendant to a superior court for trial but otherwise will proceed to deal with the charge in the same way as a charge of a summary offence; (iii) if the defendant stands charged with a summary offence but with no indictable offence—the Court will proceed to deal with the charge in the same way as if the proceedings had been commenced on information charging the defendant with summary offences only. … 46 In another, separate application for judicial review involving the applicant, McDonald J observed that the tender of material already filed in court contemplated by s 114 is ‘notional’.27 That is to say, it is not contemplated that physical copies of the material will be ‘handed up’ as is conventionally the case when documents are tendered in court during a trial. The circumstances relating to the committal of the applicant in the judicial review just referred to included that: no ‘committal brief’ (separate and distinct from the ‘preliminary brief’) was filed; the prosecution did not purport to tender the statements and materials; and the magistrate did not find that there was a ‘case to answer’ before committing him (and a co-accused) to trial in the District Court.28 These were conceded by the Director to be irregularities and errors. 47 However, in the exercise of discretion, the Court did not grant the applicant and his co-accused the relief they sought, namely the setting aside of the orders for committal and orders that the Magistrates Court reconsider the question of their committal according to law.29 That was in circumstances where, in her Honour’s view, they had not demonstrated that they had suffered any adverse consequences as a result of the irregularities30 and where, subsequent to the orders for committal, 27 Armitage v Magistrates Court of South Australia [2024] SASC 141 at [38] (McDonald J). 28 Armitage v Magistrates Court of South Australia [2024] SASC 141 at [39]-[43] (McDonald J). 29 Armitage v Magistrates Court of South Australia [2024] SASC 141 at [90]-[95] (McDonald J). 30 As McDonald J explained, to the extent that the applicants may have wished to apply to conduct cross- examination of relevant witnesses in the committal process, that opportunity remained open to them in the District Court. The complaints that adherence to the committal process would have facilitated the applicants’ decision how to plead to the charges, assisted in revealing whether disclosure had been adequately attended to, assisted in providing an understanding of the prosecution case and an opportunity to enable any issues in contention to be adequately defined and assisted in the preparation of the defence cases were found by her Honour to be illusory: Armitage v Magistrates Court of South Australia [2024] SASC 141 at [54]-[62] (McDonald J). -- 15 of 22 -- [2025] SASC 30 B Doyle J 14 the Director had laid ex officio informations in respect of the same alleged offending in the District Court.31 Their submission that they had been deprived by the irregularities of an opportunity to withdraw their election to be tried in the District Court was not made good by evidence.32 48 In reaching her conclusion, McDonald J referred to and relied upon the observation by Kourakis CJ in F, BV v Magistrates Court of South Australia33 (‘F, BV’) that: [i]n the ordinary course, the limited legal effect of a committal in enlivening a duty to bring within a specified time an Information in the District Court or Supreme Court, which the Director of Public Prosecutions is empowered to bring at any time would rarely attract the intervention of this Court in its supervisory jurisdiction. A defendant does not have a right, in the strong sense, to a summary trial of a minor indictable matter. Moreover, most deficiencies in the committal process can be cured at trial. For these reasons, applications for judicial review of committal proceedings generally will not enjoy good prospects of success of attracting a favourable exercise of the discretion to grant relief. 49 This is not to suggest that judicial review may never be available in respect of an order committing a defendant to trial. An order of committal is amenable to judicial review where jurisdictional error has occurred.34 50 In Shannon v Ackland,35 Debelle J quashed an order for committal where, inter alia, the defendant had been denied what was previously a statutory right to cross-examine three prosecution witnesses under s 106(6) of the Justices Act 1921 (SA). Having engaged in a process of statutory construction, his Honour considered that substantial compliance with the relevant provision was essential to the validity of an order for committal. 51 Following reforms to the provisions governing committals and the introduction of the need for ‘special reasons’ before the Court grants leave to call a witness for oral examination,36 in Goldsmith v Newman,37 King CJ (with whom as to this issue Perry and Duggan JJ both agreed) said that: I am prepared to assume that an error by the magistrate as to the legal meaning of the test of special reasons might so vitiate a committal for trial as to justify this Court in quashing the committal and directing the magistrate to reconsider his decision in light of the true test. It should be remembered, however, that the grant of relief by way of judicial review is discretionary. The considerations operating against the grant of such relief in respect of committal proceedings referred to in R v Grieve; Ex parte Ellis (1978) 19 SASR 437 remain valid. For the reasons given in his judgment, I agree with the dictum of Jacobs J in Clayton v Ralphs (supra) at 365 “that in principle the administration of the criminal law should be left to the criminal courts”. 31 Armitage v Magistrates Court of South Australia [2024] SASC 141 at [80]-[82] (McDonald J). 32 Armitage v Magistrates Court of South Australia [2024] SASC 141 at [81]-[86] (McDonald J). 33 (2013) 115 SASR 232 at [82]. 34 Clayton v Ralphs (1987) 45 SASR 347. 35 (1990) 55 SASR 125. 36 Summary Procedure Act 1921 (SA), s 106. 37 (1992) 59 SASR 404 at 412. -- 16 of 22 -- [2025] SASC 30 B Doyle J 15 Committal proceedings are a preliminary step in the process of criminal justice. Generally speaking, deficiencies in such proceedings can be remedied by pre-trial prosecution discovery of facts or documents or by appropriate action at the trail stage such as the permission of examination of witnesses in the absence of the jury. While magistrates are to be encouraged to conduct preliminary hearings in a way which will facilitate a fair trial and render voir dire hearings and other palliatives at trial unnecessary, both trial judges and those conducting prosecutions will have to be prepared to act reasonably to remedy any dangers to the fairness of a trial resulting from the new committal procedures. The intervention of this Court in its supervisory jurisdiction should be necessary, even where a legal basis for it exists, only in the rarest of circumstances. 52 That decision was referred to with approval by the Court in Mountford v Magistrates Court of South Australia.38 In that case, it was concluded that in order to challenge an order for committal on the basis that the magistrate had erred in not permitting an oral examination, it was necessary to demonstrate that the magistrate had not only erred but had committed jurisdictional error. Error of law on the face of the record was not available because the reasons for refusing the application were not relevantly part of the record.39 Doyle CJ did not consider it reasonably arguable that jurisdictional error had been committed but added, having regard to the fact that sending the matter back to the Magistrates Court would result in further and undesirable delay, that in view of the oft-stated reluctance of the Court to interfere with the administration of the criminal law, it was not an appropriate case for intervention by way of judicial review.40 53 Returning to F, BV, it may be noted that, notwithstanding the observation made by Kourakis CJ, his Honour granted relief in that case quashing the committal and remitting the matter for determination in circumstances where it was held that the proper construction of the offence provision differed from that adopted by the magistrate and the defendant had not had a proper opportunity to address the sufficiency of the evidence to prove the offence on that construction. Furthermore, because ‘the application raised complex questions, of construction and procedure, of public importance’ and there was ‘good reason to seek an early authoritative determination of those questions’.41 54 Gray J considered that there had been jurisdictional error in connection with the proper construction of the offence provision. He rejected the Director’s submission that the sufficiency of the evidence was amply established and that it was an unnecessary waste of time and that there would be the incurring of unnecessary expense as a result of remitting the matter.42 That said, he also observed that he viewed the present as an exceptional case, making the point that generally, contentions about the proper construction of the offence provision should be advanced ‘within the criminal process in accordance with long 38 (2006) 95 SASR 103 at [11] (Doyle CJ, White J agreeing), at [106] (Perry J). 39 Mountford v Magistrates Court of South Australia (2006) 95 SASR 103 at [24], [32] (Doyle CJ, White J agreeing). 40 Mountford v Magistrates Court of South Australia (2006) 95 SASR 103 at [49]-[50] (Doyle CJ), and see also at [106]-[108] (Perry J). 41 (2013) 115 SASR 232 at [81], [83] (Kourakis CJ). 42 (2013) 115 SASR 232 at [146] (Gray J). -- 17 of 22 -- [2025] SASC 30 B Doyle J 16 established practice’.43 Vanstone J also considered that jurisdictional error was established and that relief should not be withheld on a discretionary basis.44 55 What emerges from these decisions is that whilst jurisdictional error may be committed in connection with an order for committal: (1) it is necessary carefully to consider the nature of the error contended for with a view to ascertaining whether it is one which, on proper construction of the statutory scheme, goes to the validity of the order. As recently observed by Gageler J in Stanley v Director of Public Prosecutions (NSW),45 a mistake on the part of an inferior court, even as to the proper construction of a statute which invests that court with jurisdiction, will not necessarily deprive a resultant order of the authority conferred on the court to make an order of that kind; and (2) even where jurisdictional error is established, the discretion whether to grant or withhold relief calls for particular attention in this context given the undesirability of fragmenting the criminal process and the somewhat limited legal consequences of an order for committal. Consideration 56 The applicant contends that in making the order for committal the magistrate committed jurisdictional error because the prosecutor did not ‘tender’ evidence within the meaning of s 114(1)(a) of the CP Act and, consequently, the magistrate was not able to consider or evaluate the evidence as required by s 115(1) as an essential pre-condition to making an order for committal under s 115(3)(b). 57 At its simplest, the applicant’s case, as it emerges from the SFIC and his affidavit in support, is that because there is no official record of the Magistrates Court noting or recording that particular items of evidence were tendered or received into evidence during the committal process, no evidence was tendered. The applicant appeared by his affidavit to advance the proposition that correspondence from registry staff confirmed that no evidence was tendered. 58 The short answer to that proposition is that the existence or absence of a distinct record that evidence was or was not received is not definitive of whether evidence was tendered within the meaning of s 114. There is no particular requirement that there be a formal notation of the receipt of evidence. 59 It is apparent from the transcript of the hearing on 17 April 2024, extracted earlier, that the magistrate considered that the material sought to be tendered by the prosecutor was tendered and thus received into evidence for relevant purposes. The absence of some written notation to that effect is irrelevant. So too, at least in this context, is the fact that exhibit numbers or letters were not given to items of 43 (2013) 115 SASR 232 at [147] (Gray J). 44 (2013) 115 SASR 232 at [188] (Vanstone J). 45 (2023) 278 CLR 1 at [18]. His Honour was in dissent as to the outcome but not as to the principles. -- 18 of 22 -- [2025] SASC 30 B Doyle J 17 evidence. It is true that, conventionally, at a trial, each exhibit will be given a unique number or letter to permit its ready identification, and various court rules, including with respect to appeals,46 assume that this will have occurred. However, even in the context of a trial, it is common enough for a tender book containing a large number of distinct documents to be tendered and received as a single exhibit. On interlocutory applications, the practice of judicial officers with respect to the assigning of particular exhibit references to affidavit or other material relied upon varies. Usually, because the material will have been filed, the material which the Court accepts as admissible and relevant on the application will be noted as having been received without the necessity for the parties to hand up a copy or original of the documents. 60 Having regard to the statutory context, which includes that the prosecution will have been required to file material which is tendered pursuant to s 114, I see no reason why any narrow approach to the concept of tendering evidence or material should be adopted. I agree with McDonald J that a ‘notional’ tender is permissible47 and I would further accept that there is no per se preclusion upon a number of documents or items being tendered collectively, rather than individually or sequentially. 61 However, on the hearing of this application, the applicant advanced a variant on his complaint that no evidence had been tendered. The applicant submitted, variously, that: (i) in this case, the items listed in the evidentiary material briefs were ambiguously described and did not permit, on the face of the list, a ready identification of what the documents or things actually were; (ii) the prosecutor sought to tender material globally and without precision; and (iii) the magistrate cannot be said to have received evidence capable of identification, or perhaps more particularly, that it is not now possible to identify the precise extent of the documents or things tendered. 62 The applicant submitted that the practical effect of these matters was that: he had not been given a proper opportunity to object; he had been denied his right to know precisely what material the prosecution relies upon to prove its case; and it was not possible to say whether the prosecution had made appropriate and complete disclosure. 63 The applicant contended that these difficulties were indicative that the process adopted in the present case did not achieve the purpose of the statutory provisions48 required to be construed in order to determine whether there had been non-compliance with the statutory requirements and, ultimately, demonstrative of jurisdictional error. The applicant sought to rely, inter alia, upon observations made by the Hon Brian Ross Martin AO QC in his Report to the Attorney-General 46 See, eg, Rule 218.4 of the Uniform Civil Rules 2020 (SA) and Rules 131.1 and 133.4 of the Joint Criminal Rules 2022 (SA). 47 Armitage v Magistrates Court of South Australia [2024] SASC 141. 48 The applicant relied upon s 14 of the Legislation Interpretation Act 2021 (SA). -- 19 of 22 -- [2025] SASC 30 B Doyle J 18 concerning the ‘Major Indictable Reforms’ made in 2017,49 in particular, his observation that the committal brief should be as complete as reasonably possible and ‘trial ready’.50 64 Notwithstanding my view that s 114(1)(a) may be complied with by a global tender of material and without any or all of the material being given an exhibit number or other form of identification, there could be a circumstance where, despite the appearance of a tender on the part of the prosecution and the acquiescence or agreement of the presiding magistrate, the proper conclusion may be that no evidence has been tendered. To give an extreme example, in a case where a committal brief contained many thousands of documents, if a prosecutor purported to tender the ‘key documents’, without any further or better identification, the proper conclusion to draw (in the unlikely event that the magistrate acquiesced in such a course) would be that no evidence was tendered, because it would not be possible to identify the evidence tendered. 65 In the present case, there can be little doubt that the statements, comprising the nine items in the first table of Revision 3, were tendered. There may be some scope for debate about whether items 1, 2, 13, 14, 19 and 20, which are documents referred to in those statements, were encompassed within the tender. 66 It is also apparent that a disc (or discs) containing actual footage (as distinct from stills taken from footage) was (or were) tendered, and that this material had been informally disclosed but not, at the time of the relevant hearing, included within the evidentiary material brief. 67 The high point of the applicant’s submission on the facts, therefore, is really that: (1) there was a lack of clarity about whether items 1, 2, 13, 14, 19 and 20 in the second table were tendered; (2) items 3-12 and 15-18 in the second table were not tendered; and (3) the description of item 18 is unrevealing as to its nature and contents. 68 It cannot be said that no evidence was tendered. On any view, the statements and some CCTV footage were tendered. The most that can be said is that it is not pellucidly clear whether some particular documents referred to in the exhibits were tendered, and it would appear that some other documents (including, for example, the election for trial, which had no relevance to the exercise) were not tendered. If it were critical to decide the matter, I would hold, having regard to the fact that they are preceded by cover sheets referencing the relevant witness statements, that items 1, 2, 13, 14, 19 and 20 were tendered. Further, most of the content of the 49 The Hon Brian Ross Martin AO QC, ‘Review of the Major Indictable Reforms – Criminal Procedure Act 1921 (as amended by the Summary Procedure (Indictable Offences) Amendment Act 2017)’, Report to the Attorney-General, 13 September 2019 (‘Martin Report’). 50 Martin Report at [305]. -- 20 of 22 -- [2025] SASC 30 B Doyle J 19 items not explicitly tendered are either reproduced or extracted (in whole or in part), or referenced (by a description of the events described by the document, such as in the case of invoices relating to costs relating to the dental compressors) in the material that was undoubtedly tendered. Further again, no submission was made, nor in my view could it have been, that any item that arguably was not tendered was exculpatory, such that the failure to attend to its tender was consequential or prejudicial. Finally, on a review of the transcript of 17 April 2024, and in light of the items of evidence relied upon by the prosecution, it is not apparent to me that the magistrate’s decision that there was a case to answer drew upon any item of evidence which was not tendered. 69 Irrespective of which view is taken about whether items 1, 2, 13, 14, 19 and 20 in the second table were tendered, there was in my view substantial compliance (viewed quantitatively and qualitatively) with ss 114 and 115 of the CP Act. 70 In my view, it is impossible to discern from the text, structure or purpose of the relevant provisions that strict compliance with the provisions in all respects is necessary in order that the order for committal is legally efficacious or valid. Put another way, I would not accept that a non-substantial departure from that requirement involves jurisdictional error. 71 It is one thing to hold, as Debelle J did in Shannon v Ackland in the context of an earlier regime, that a complete denial of a right to cross-examine witnesses vitiates an order for committal, or to hold, as members of the Full Court did in F, BV, that undertaking the relevant evaluation on the footing of a misconstruction of the offence provision involves jurisdictional error. It is another to hold that a failure to tender every statement or item filed in Court invalidates the resultant order for committal, particularly where there is no submission developed that the material that undoubtedly was tendered was incapable of establishing a case to answer. 72 Accordingly, I am not satisfied that jurisdictional error has been demonstrated. 73 If it had been, I would have had significant reservations about exercising the discretion to grant relief. I am unpersuaded by the contentions of actual or practical prejudice arising from the process that has been followed or the way in which documents or items have been described. The fact is that the applicant has the documents and items corresponding to the descriptions and if there is any doubt about their relevance, provenance or admissibility at trial, these matters can be raised in the District Court in the ordinary way. 74 I note for completeness that the applicant advanced submissions relating to the form of the information filed in the District Court. He submitted that notwithstanding that there had been an order for committal which, he submitted, subject only to s 122 of the CP Act, engaged the obligation to present an information under s 123, the Director had here purportedly exercised a power -- 21 of 22 -- [2025] SASC 30 B Doyle J 20 under s 103 of the CP Act to proceed on an ex officio basis. I say purportedly because the applicant also submitted that the information could not be said, consistently with the requirements of s 103, to have been filed in the name and by the authority of the Director. Save for a tentative submission (which I reject), that this reflects that the Director has formed the view that the committal process was flawed, leading him to rely on his ex officio powers, the only relevance of these contentions could be to a question of discretion, which, on my conclusions, does not arise. 75 However, for completeness, I observe that if in fact the proper conclusion to be drawn from the reference on the information to s 103 was that the information was presented solely in reliance upon the Director’s powers to lay an ex officio information, this would, if anything, tend to count against a favourable exercise of discretion (had the order for committal been shown to be affected by jurisdictional error). That is because unless the exercise of that power were somehow impugned as abusive, it would render an order for certiorari and mandamus futile. 76 For various reasons which I need not detail, I do not, in any event, accept the premise, namely, that the reference to s 103 on the information connotes that the information was not laid in performance of the duty arising under s 123 of the CP Act. Disposition 77 The application for judicial review must be dismissed. I will hear the parties as to costs. -- 22 of 22 --