Batemberski v Fitzsimon & Ors [2000] QSC 185

State F1LE $ii 15 Reporting ~(6/(4/lf & oo/\ 't!S- Burea U ;,I TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION JONES J Application No 3 of 2000 ALEXANDER BATEMBERSKI and MR ROBERT WILLIAM FITZSIMON SM and SGT KEVIN THOMAS GLEESON and SGT DIANE ELLEN FISHER CAIRNS .. DATE 01/02/2000 JUDGMENT ,, rh l'l1111r, The I.aw Courts, (;('orgl' Stred, Brish:111l', Q ..moo REVISED COP!ES ISSUED State Reporting Bureau Date '2.. I ~ I ;U)OD Plaintiff First Defendant Second Defendant Third Defendant Tdt~phon\': (07) JZ-17 -IJ(iO Fax: (07) JZ-17 5SJZ -- 1 of 5 -- 01022000 D.2 T8-9/RGC M/T CNS068/2000 (Jones J) HIS HONOUR: Before me are two applications. The first is made by Mr Alexander Batemberski seeking a statutory order of review of the decision of the Stipendiary Magistrate to commit him for trial on two drug related offences. The second application is made by Sergeants Kevin Gleeson and Diane Fisher, the two respondents to the first application to have Mr Batemberski's application struck out pursuant to section 48 of the Judicial Review Act hereinafter referred to as "the Act". Since the decision of the learned Stipendiary Magistrate, the Director of Public Prosecutions on 9 November 1999 presented an indictment to the Supreme Court charging the applicant with the two offences with which he was initially charged. The two applications have been heard together and I have considered the evidence adduced in respect of both applications. Allowing that there is some authority to the effect that this Court has jurisdiction to undertake a review of committal proceedings, this jurisdiction is likely to be exercised only in exceptional circumstances. I refer particularly to Lamb v. Moss (1983) 49 ALR 533 where, particularly at page 564, the following appears: "The power to make an order to review under the Act in respect of committal proceedings should be exercised only in the most exceptional cases, especially in respect of a decision in the course of proceedings. Additional considerations might intrude at the final stage; for example, in respect 2 JUDGMENT 10 2 30 40 50 60 -- 2 of 5 -- 01022000 D.2 T8-9/RGC M/T CNS068/2000 (Jones J) of his committal for a trial and commitment to prison pending trial. Sankey v. Whitlam (1978) 142 CLRl" Essentially, what Mr Batemberski seeks is a review of the evidence considered by the learned Stipendiary Magistrate. In particular, Mr Batemberski contends that the evidence of a particular police witness was perjured. Obviously, this indicates a live issue to be dealt with at trial or perhaps even on directions before trial. But it is not a matter which, in my opinion, decision to commit. can be determined on a review of any I am in respectful agreement with Mr Justice Ambrose's remarks made in the decision of Chen v. Comans and Anor unreported No 4650 of 1999 delivered on 6 August 1999 where, at paragraph 38 10 20 of his judgment he said: 30 "In my view it is quite inappropriate for persons dissatisfied with the admission of evidence (with or without a ruling on objection taken) by a Stipendiary Magistrate in committal proceedings to apply to this Court for a judicial review of that admission or ruling; to permit such a procedure would impede the proper and efficient administration 40 of criminal law. it is obviously less expensive for all parties concerned and more in accord with the traditional administration of the criminal law for those matters to be debated before and determined by the Director of Public Prosecutions initially and if necessary before and by a Judge of the Court to which that person is committed for trial upon an application for directions and determination of such matters under s. 592A of the Criminal Code or perhaps upon vdir dire upon trial in that Court" 50 This sentiment had previously been expressed by Justice Sheppard in Foord v Whiddett (1985) 6 FCR 475 when he referred to the remarks in Lamb v. Moss Supra and to remarks in two other High Court cases: Clyne v. The Director of Public 3 JUDGMENT 60 -- 3 of 5 -- 01022000 D.2 T8-9/RGC M/T CNS068/2000 (Jones J) Prosecutions and Seymour v. The Attorney-General, and he said, in particular at paragraph 29: "In my opinion the authorities to which I have referred provide powerful reasons why the discretion in this case should be exercised adversely to the applicant. This is a case where, notwithstanding that the evidence in support of the charge is in short compass, the fundamental submission of senior counsel for the appl-icant necessarily involves an examination of the detail of the evidence already considered by the magistrate in determining the existence of a case sufficient to warrant a decision to commit for trial. If there is a trial, the evidence will be given again. It will not come out perhaps precisely as it has come out before the magistrate. It will then need to be considered by a trial Judge in connection with any submission that there is no case proper to go to the jury. It is my opinion that it is highly undesirable for courts of civil jurisdiction to be asked to interfere, in the way that this application does, with the due processes of the criminal law and its administration. If there were no more to the case, I would have no hesitation in deciding that my discretion should be exercised adversely to the applicant with the result that the application would be dismissed" The task before Mr Justice Sheppard in that case was essentially the same as what is before me, namely a review of 10 30 the evidence adduced at committal to determine its weight and 40 whether it should have been relied upon by the Magistrate to make the decision to commit. The type of inquiry which Mr Batemberski seeks in his application is, in my view, inappropriate and undesirable in 50 the context of judicial review. Its outcome can have no bearing on the decision of the Director of Public Prosecutions to prosecute or to continue with the prosecution once it has been initiated. 60 4 JUDGMENT -- 4 of 5 -- 01022000 D.2 T8-9/RGC M/T CNS068/2000 (Jones J) In those circumstances, I will allow the application of the respondents, Sergeants Gleeson and Fisher, and order that the application of Mr Batemberski be dismissed. PLAINTIFF: I would also like ·to say that I do disagree with your decision and if possible I would like to appeal that decision. HIS HONOUR: Well that is something you can take up outside of this Court. PLAINTIFF: All right. Thank you. 10 20 30 HIS HONOUR: Yes. Thank you. Yes, having come to the view that I did on the applications I see no reason why the costs should not follow the event in the circumstances of this case. I order that the applicant, Mr Batemberski, pay to the respondents, Sergeants Gleeson and Fisher, their costs of and 40 incidental to both applications. I direct that such costs be assessed on the District Court Scale. 5 JUDGMENT 50 60 -- 5 of 5 --