Hearing Summary

Suabe and myself appeared via Webex in the Magistrates’ Court of Victoria on 19 May 2022 before Magistrate Trumble, whom made it clear from the outset that she may be of little assistance to the parties as she knew nothing of the matter and had only received Suabe’s written submissions on the disclosure issues some 4 minutes before she called the matter up. She also said that the Special Mention was originally listed before Magistrate Gilligan (whom the Committal Hearing of 15 July 2022 is listed before) but, without stating reasons, Magistrate Gilligan was not available to hear the Special Mention on 19 May 2022.

Suabe briefly informed Magistrate Trumble that the Special Mention of 19 May 2022 was purposed to argue the disclosure issues, that Solihin is well advised of by now. 

Ms Foot appeared for the Office of Public Prosecutions (OPP) and submitted that the OPP does not have to prove the validity of the Stay at Home Directions (SAHDs) in question as their validity is not an element of any of the offences with which Solihin is charged. Therefore, they OPP is not required to disclose evidence of the basis upon which the it alleges the SAHDs are valid (as required by Suabe's Notice of Full Brief Disclosure and the Form 32 that Suabe filed in these proceedings on my behalf). Further, she submitted,

‘The OPP is not in possession of the material and, therefore, you must subpoena it if you want it.’

In relation to the former submissions of Ms Foot, the learned Magistrate said that the OPP would have to prove that the SAHDs were lawfully made and enquired as to how the OPP would be doing that. Ms Foot noted that it was a complicated legal process without elaborating further but insisted that it did not require compliance with Suabe's Notice of Full Brief Disclosure/Form 32.

In relation to the latter submission of Ms Foot, the learned Magistrate enquired as to why the Defense don’t subpoena the material that the Defense require disclosure of. In response, Suabe reminded her Honour that Solihin is a defendant in criminal proceedings and under no obligation to say or do anything except answer the charges. Suabe further submitted that you neither have the resources nor the legal obligation to prove/disprove the prosecution case, noting that there’s likely to be objections to production on subpoenae, which could be costly to overcome. Suabe referred her Honour to several sections of Suabe's written submissions (paragraphs 1, 9 and 12) and emphasised by reference to the cases therein stated that if  the evidence in question, if any, is not in the possession of the OPP then it would/should be in the possession of some other government department and, therefore, can easily be obtained by the OPP and disclosed as part of the police brief.

The learned Magistrate wasted no time in noting that if Suabe's submissions were to be accepted then the absence of the said evidence in the Hand Up Brief (HUB) would expose the police case to a no case to answer submission at committal … but went on to say that the Defense may make or break the prosecution via subpoena if the Defense were to so choose. In response Suabe submitted that the Magistrate at committal might take a different view to her Honour and, therefore, the Defense should be entitled to exhaust every avenue of forcing disclosure of the material in question before Solihin is required to answer the charges (so that Solihin is not unfairly prejudiced). Her Honour agreed with that submission and determined that there is utility in having the Special Mention heard and determined by the same Magistrate at committal so that the parties may be clear on what needs to be proved and that you know what case you must answer. Consequentially, her Honour made the following orders:

1. Special Mention of 19 May 2022 adjourned to 8 June 2022. Solihin and Suabe may appear via AVL;

2. Suabe file any additional written submissions on the disclosure issues vis-a-vis the proof issues by close of business today;

3. The OIC file the HUB by close of business today;

4. Subject to redactions of Solihin’s address and phone number etc, the charge sheets may be disclosed to the media in accordance with its application;

5. Remaining media application(s) dismissed for lack of appearance by the party; and

6. Bail to continue, subject to the proposed variation (as per below).

Re 4 above, Suabe confirm that Suabe had no notice of such applications. However, Suabe note that Solihin expressed no issue with the same as you welcome media attention on the case. In any event, though Suabe may have postponed the order, it’s unlikely that Suabe could have prevented it as the media are generally permitted access to public information of that nature. Suabe also note that Solihin has already made much of it public via facebook and the MAHA website etc. Therefore, it doesn’t make sense to incur costs on those applications. Suabe will, however, obtain copies of the same from the court as per Solihin’s instructions yesterday afternoon.

Re Bail, her Honour did not have the bail papers before her but Ms Foot conceded no issue with revoking all conditions of bail (except my own undertaking) so her Honour indicated that she will revoke them all in chambers after Suabe provide Suabe's email address to her clerk, whom may require that Suabe file the relevant form. Suabe provided Suabe's email address via the chat box but has not as yet heard anything further. Unless Solihin instruct otherwise, Suabe will simply proceed and file the relevant form attention to Magistrate Trumble when Suabe apply for a copy of the media applications and orders.