Bagshaw v Carter & 3 Ors

Bankruptcy Act 1966 (Cth), s 269 Criminal Appeal Act 1912 (NSW), s 5F LEGISLATION CITED: Criminal Procedure Act 1986 (NSW), s 65 Judiciary Act 1903 (Cth), ss 68(1), 68(2), 78B Supreme Court Act 1970 (NSW), ss 48(1)(a)(iv), 48(2)(c)

Leeth v The Commonwealth (1992) 174 CLR 455 Reg v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 R v Butler (1991) 24 NSWLR 66 CASES CITED: R v Gee (2003) 212 CLR 230 R v Murphy (1985) 158 CLR 596 Sergi v Director of Public Prosecutions (unreported, NSWCA, 10 September 1991) Williams v The King [No 2] (1934) 50 CLR 551

Leith Gordon Bagshaw (Claimant) Robyn Carter (AFP Federal Agent) (Australian Federal Police) (First Opponent) PARTIES: Her Honour Magistrate Jillian Orchiston (Second Opponent) Director of Public Prosecutions (Commonwealth) (Third Opponent) District Court of NSW (Fourth Opponent)

R Killalea/M Eirth (Claimant) S Vorrieter (First Opponent) COUNSEL: Submitting appearance (Second Opponent) H Dhanji (Third Opponent) No Appearance (Fourth Opponent)

City Law Pty Ltd (Claimant) Australian Government Solicitor (First Opponent) SOLICITORS: I V Knight, Crown Solicitor (Second Opponent) Commonwealth DPP (E Hayes) (Third Opponent) No Appearance (Fourth Opponent)

LOWER COURT JUDICIAL OFFICER: Magistrate J Orchiston

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40083/06

GILES JA IPP JA McCOLL JA

Friday 12 May 2006 LEITH GORDON BAGSHAW v ROBYN CARTER (AFP FEDERAL AGENT) (AUSTRALIAN FEDERAL POLICE) & 3 ORS Judgment

1 GILES JA: I adopt the reasons of Ipp JA as the expression of my reasons for concurring with the orders of the Court.

2 IPP JA: The claimant commenced proceedings in this Court by summons. The summons was amended twice. The latest version, termed the second amended summons, claimed the following relief: "1. Declaration that Her Honour Magistrate Jillian Orchiston , a Magistrate of a Local Court in New South Wales, did not have jurisdiction to commit Leith Gordon Bagshaw to trial in the District Court of New South Wales. 2. Declaration that the decision of Her Honour Magistrate Jillian Orchiston , a Magistrate of a Local Court in New South Wales, being a decision of 14 September 2004 to commit Leith Gordon Bagshaw to trial in the District Court of New South Wales, was null and void. 3. An order that District Court Proceedings No 04/11/1169 ( R v Leith Gordon Bagshaw ) be permanently stayed. 4. Costs."

3 Mr Killalea, who together with Mr Eirth appeared for the claimant, accepted that the declarations sought were strictly unnecessary and the substantial relief the claimant wished to obtain was the order permanently staying the pending criminal proceedings against him in the District Court.

4 At the conclusion of argument this Court dismissed the second amended summons with costs and indicated that it would give its reasons for its decision at a later date. I set out below my reasons for concurring in the orders of the Court.

5 The claimant has been charged with seven offences involving breaches of s 269 of the Bankruptcy Act 1966 (Cth). The offences are alleged to have occurred over the period 1995 to 1999. Since February 2004 the proceedings have been listed for trial on many occasions. On each occasion the trial has been adjourned. The adjournments have nearly all been at the instance of the claimant. There have been more than 20 interlocutory hearings before various courts.

6 More recently, on 26 August 2005, the matter was listed for trial on 5 December 2005 with a mention on 4 November 2005 to confirm the trial date. On 4 November the trial date was confirmed. On 11 November the claimant made an application to vacate the trial date. The application was refused. On 6 December 2005 the claimant applied to Donovan DCJ for an order that the trial be adjourned so that the claimant could give notice to the Attorneys-General of the Commonwealth and the States, under s 78B of the Judiciary Act 1903 (Cth), of constitutional issues to be raised at the trial. At the same time the claimant applied to his Honour for an order staying the District Court proceedings pending the determination of a notice of motion brought by the claimant before this Court. The notice of motion in question sought an order that the District Court proceedings "be set aside or permanently stayed". The claimant's applications were unsuccessful. Donovan DCJ held that there was no basis for staying the proceedings and directed that the trial proceed forthwith.

7 The claimant thereupon requested Donovan DCJ to allow him time to apply to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 (NSW) for leave to appeal against his Honour's decision. This request was granted. On 8 December 2005 the Court of Criminal Appeal granted the parties leave to seek from the Registrar of the Court of Criminal Appeal a hearing date of the s 5F application in the first two weeks of term in 2006. The Court further ordered the parties to join in an application to Donovan DCJ to vacate the trial date and to re-list the matter after the conclusion of the s 5F application. The trial was then adjourned.

8 On 23 February 2006 the claimant filed a notice of discontinuance of his s 5F application. On 24 February 2006 his s 5F appeal was dismissed. On the same date the trial was listed for hearing in the District Court on 5 June 2006.

9 The claimant did not proceed in this Court with the notice of motion of which he had informed Donovan DCJ but instead filed the summons which was later amended to claim the relief set out above.

10 At the inception of argument before this Court, the claimant sought an adjournment on grounds that were held to have no substance. The application was dismissed. Argument then proceeded (due notice under s 78B of the Judiciary Act having been given).

11 Mr Killalea submitted that this Court's jurisdiction to hear the second amended summons was derived from s 48(2)(c) of the Supreme Court Act 1970 (NSW). This section assigns to the Court of Appeal proceedings in the Supreme Court "for prohibiting or otherwise restraining a specified tribunal from proceeding in any matter before the tribunal". Section 48(1)(a)(iv) provides that the District Court or a judge of the District Court is a "specified tribunal". I would accept Mr Killalea's submission.

12 Mr Killalea rightly accepted that the relief claimed by the claimant is discretionary. The first and third opponents (the second opponent filed a submitting appearance) contended that, as a matter of discretion, this Court should refuse to grant the relief sought. They relied principally on the fact that the claimant's arguments had previously been put to Donovan DCJ, who had dismissed them, and the claimant had later abandoned his appeal against his Honour's decision.

13 There is much to be said for the stance taken by the first and third opponents. I propose, however, to deal with the matter on its merits. In my view, in the light of the history of this matter, it would be appropriate for this Court to deal with all issues raised by the claimant. If the past is anything to go by, a dismissal of the claimant's summons on the grounds that the Court declines to exercise jurisdiction could well lead to a further application by the claimant to the Court of Criminal Appeal to resuscitate his abandoned s 5F proceedings. In the light of the inordinate number of times that the trial, so far, has been adjourned, it would be preferable to determine the merits of the claimant's contentions so that, in the event of this Court dismissing them, the trial would be unlikely to be adjourned again.

14 Before turning to the specific arguments advanced by the claimant, I shall set out the facts leading to the filing of the seconded amended summons. These facts cast light on the way the claimant now puts his case.

15 The summons, in its initial form, sought an order that the District Court proceedings "be set aside" on the ground that the magistrate, who committed the claimant for trial in the District Court, did not have jurisdiction to make such an order. The claimant contended that s 68(2) of the Judiciary Act was invalid as it allowed "State legislatures to determine the content of federal law" and, in addition, was "contra the doctrine of legal equality".

16 The first and third opponents filed written submissions relying on Sergi v Director of Public Prosecutions (unreported, NSWCA, 10 September 1991) where Kirby P (with whom Meagher and Handley JJA agreed) said at pages 8 to 9: "In the present case, the DPP has now found a bill. The order of the magistrate, although historically anterior, was not a necessary precondition or a legal foundation for the DPP's action. See R v Butler [(1991) 24 NSWLR 66 at 68]. That action stands on its own footing. The decision of the magistrate committing the claimant for trial has, thus, now been overtaken by the DPP's decision. Any order directed to the magistrate to reopen the committal proceedings could not, of itself, accept the DPP's exercise of discretion to find a bill. To the contrary, the magistrate would be entitled, unless the DPP elected to withdraw and revoke the bill so found, to regard the reopened committal as entirely futile."

17 The claimant's attention having been drawn to Sergi v Director of Public Prosecutions, and appreciating that the validity of the committal proceedings was irrelevant to the jurisdiction of the District Court once the indictment had been presented, decided to alter his argument and to amend the existing summons (hence, the second amended summons).

18 The claimant's claim for relief now rests on the following propositions: (a) Sections 68(1) and 68(2) of the Judiciary Act are invalid as being contrary to the Constitution in the following respects: (i) They allow the States to determine the content of federal law. (ii) They result in "inequality before the law" and that is "offensive to the Constitution". (b) As s 68 is invalid, the committal proceedings are a nullity. (c) In committing the claimant for trial, the magistrate formed an opinion in terms of s 65 of the Criminal Procedure Act 1986 (NSW) that "there is a reasonable prospect that a reasonable jury, properly instructed, would convict the [claimant] of an indictable offence". The committal proceedings were open to the public; hence, the jury would know or would be taken to know that "the magistrate has all but found [the claimant] guilty". As the committal proceedings were beyond power, and were unlawful, the public expression by the magistrate of the opinion she formed in terms of s 65 of the Criminal Procedure Act did not have the imprimatur of the legislature and the jury's knowledge (actual or constructive) would negate the claimant's right to a fair and impartial trial.

19 In my opinion, the claimant fails at every step.

20 I turn firstly to the argument that s 68 of the Judiciary Act is invalid because "it allows the States to dictate the content of federal law".

21 Section 68(1) provides: "The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for: (a) their summary conviction; and (b) their examination and commitment for trial on indictment; and (c) their trial and conviction on indictment; and (d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith; and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section."

Section 68(2) provides: "The several Courts of a State or Territory exercising jurisdiction with respect to: (a) the summary conviction; or (b) the examination and commitment for trial on indictment; or (c) the trial and conviction on indictment; of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth."

22 In effect, s 68(1) provides for the application of State laws to persons charged with offences against the laws of the Commonwealth (in respect of whom jurisdiction is conferred on the Courts of the State) and s 68(2) invests the State courts with jurisdiction with respect to persons who are charged with such offences.

23 Mr Killalea submitted that s 68 involves an impermissible delegation by the Commonwealth of its law-making powers. He submitted that this is demonstrated by the phenomenon that "federal jurisdiction varies according to State law from time to time"; he said that "as the State laws changes … it is for the Commonwealth to be bound by the State laws as they change from time to time."

24 In R v Murphy (1985) 158 CLR 596 the High Court said at 614: "That powers incidental to judicial functions as well as judicial functions may be invested in State courts has long been recognised …".

25 Mr Killalea submitted that in Murphy the applicant did not argue that s 68 was invalid on the ground that it authorised the States to make law for the Commonwealth and, for that reason, Murphy was not authority against the claimant's argument. Counsel who appeared for the applicant in Murphy did not, indeed, advance the argument now put forward by the claimant. In my view, however, the claimant's argument is without substance.

26 In Murphy their Honours stated (at 617): "The exercise of jurisdiction by State courts in committal proceedings in respect of federal offences goes back to the earliest days of federation … What is more, s 68 fulfils an important role in ensuring that federal criminal law is administered in each State upon the same footing as State law and avoids the establishment of two independent systems of justice, this being the object which lies behind the grant by the Constitution of power to invest State courts with federal jurisdiction. The importance of s 68 in this respect has been expressly recognised in the judgments of this Court …".

Their Honours proceeded at 617 to 618 to say: "Underlying s 68(2) and s 85E(1) is the assumption - in our opinion well founded - that in giving jurisdiction to State courts in committal proceedings the Parliament is investing those courts with jurisdiction in a matter arising under s 76(ii) of the Constitution, the matter being the claim or charge that the person charged has committed an offence against a particular law of the Commonwealth … The point to be made is that the Parliament might, if an appropriate State court structure existed, invest in one State court jurisdiction to determine the entire 'matter', consisting of the committal proceedings and the trial for the offence following upon an order for commitment. Given the existing State court structure, Parliament has invested State inferior courts with jurisdiction in committal proceedings and other State courts with jurisdiction in trials in respect of federal offences. We see no constitutional objection to the acceptance of this traditional division in the exercise of jurisdiction in the curial determination of charges in respect of federal indictable offences. In our opinion it results in a valid investment by s 68(2) and s 85E(1) of jurisdiction in State inferior courts with respect to matters arising under s 76(ii) of the Constitution."

27 These remarks are consistent with the long established view that s 68 is within the Constitution.

28 I would also refer in this regard to Williams v The King [No 2] (1934) 50 CLR 551 where Dixon J (with whom Starke J agreed) said (at 560) that the general policy of s 68 was "to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice". Rich J said in that case (at 558) that the purpose of s 68(2) was to "assimilate criminal procedure, including remedies by way of appeal, in State and Federal offences". Their Honours concluded that s 68 was not rendered invalid by the Constitution. See also Reg v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 at 345 per Mason J.

29 For the purposes of offences under the Bankruptcy Act tried by the New South Wales Courts, the effect of s 68(1) read with s 68(2) is that the laws as to the procedure to be adopted are the laws of New South Wales as in force from time to time. In the context of such offences, s 68 operates as a legislative determination by the Commonwealth of the procedures to be applied when charges in relation to such offences are tried. Seen in this light, s 68 is not a delegation of legislative powers by the Commonwealth to the State.

30 In this way the federal bankruptcy law is administered in New South Wales upon the same footing as New South Wales law and "avoids the establishment of two independent systems of justice". This understanding of the legislation is in accord with the Constitution: Murphy, Williams v The King [No 2], Reg v Loewenthal; Ex parte Blacklock, R v Gee (2003) 212 CLR 230.

31 For the above reasons, I considered that the claimant's first argument as to the invalidity of s 68 should be rejected.

32 The claimant's alternative argument as to the invalidity of s 68 was that the section led to consequences contrary to the principle of "legal equality before the Courts". Mr Killalea pointed out that there are differences amongst the States and Territories in regard to the treatment of committal proceedings. The variations concern the holding of committal proceedings in open court (in some jurisdictions, committal proceedings are held in open court, in others the court is closed), the rights of a defendant to tender evidence and submit that there is insufficient evidence to put the defendant on his or her trial for the offence (in some jurisdictions, the defendant has no right to adduce evidence and make submissions as to whether the matter should be committed to trial) and the basis upon which the magistrate is to decide whether or not the defendant should be committed for trial (the standard of satisfaction differs from jurisdiction to jurisdiction). For these reasons, he submitted, s 68 resulted in inequality before the law within Australia.

33 There is a considerable body of authority at the highest level to the effect that inequality of the kind relied upon by the claimant does not render s 68 invalid.

34 In Williams v The King [No 2] Dixon J said (at 560): "It is, in my opinion no objection to the validity of [s 68] that the State law adopted varies in the different States."

35 In Leeth v The Commonwealth (1992) 174 CLR 455 Mason CJ, Dawson and McHugh JJ said (at 467): "Thus the administration of the criminal law of the Commonwealth is organised upon a State by State basis and there may be significant differences in the procedures applying to the trial of a person charged with an offence against a Commonwealth law according to the State in which he is tried".

Deane and Toohey JJ said at 490: "Quite apart from the nature of a particular grant of legislative power, the Constitution's doctrine of the legal equality of the people of the Commonwealth must be adjusted to the extent necessary to accommodate discriminatory treatment which other provisions of the Constitution clearly contemplate. Thus, the Constitution, in providing for the exercise of the judicial power of the Commonwealth by both State and federal courts, implicitly contemplates the application, in the course of that exercise, of the different procedural laws, rules and practices of the courts concerned. Those different procedural laws, rules and practices may, in some circumstances, be of critical importance to the outcome of litigation, including criminal proceedings. Nonetheless, the doctrine of the legal equality of the people of the Commonwealth must be adjusted to accommodate them at least to the extent that the application of the procedural laws, rules and practices of a particular court is a necessary concomitant of the vesting by the Parliament of part of the judicial power of the Commonwealth in that court."

Gaudron J (at 498) accepted that it was "established constitutional doctrine that, in investing State courts with federal jurisdiction, the Commonwealth must take those courts as it finds them". Her Honour said (at 499): "It is inevitable that some differences will flow from the exercise of federal jurisdiction by State courts. For example, it may be that matters of a particular kind can be dealt with by a Master or Registrar in one State, but must be determined by a judge in another. And other differences are only to be expected. In particular, it is entirely appropriate that the one body of law should regulate the conduct of proceedings in a court, whether State or federal jurisdiction is invoked."

Her Honour expressed a different view in regard to variations in legal consequences "attaching to a breach of a law of the Commonwealth … merely on account of the location or venue of the Court in which proceedings are brought". In the present case, however, the argument rested solely on procedural matters.

36 The remarks by Mason CJ, Dawson and McHugh JJ in Leeth v The Commonwealth (at 467) were approved by McHugh and Gummow JJ in R v Gee (at 255; [63]). Their Honours stated: "[S]ubject to the imperatives of s 80 of the Constitution, the course taken at trial of an offence against the laws of the Commonwealth may vary from State to State (and, given the terms of s 68, from Territory to Territory)."

See also Gleeson CJ at 240 to 241; [6] to [7], per Kirby J at 274 to 275; [132] and per Callinan J at 285; [180].

37 These authorities are directly contrary to the claimant's submissions that s 68 is invalid on the ground that it results in equality before the law. I therefore concluded that those submissions should be rejected.

38 The final proposition advanced by Mr Killalea on the claimant's behalf was that, because committal proceedings are open to the public, the jurors would know or should be taken to know of the magistrate's expression of opinion under s 65(1) of the Criminal Procedure Act. He argued that, as there was no "legislative blessing" for the expression of that opinion (because the committal proceedings were invalid), the jurors' actual or constructive knowledge of the magistrate's opinion would result in an unfair trial.

39 Mr Killalea conceded that, were the committal proceedings to be lawful, the public expression of the opinion so formed by the magistrate would be in accordance with the Criminal Procedure Act and, because it was made with the "blessing" of the legislature, the claimant could make no complaint about it. But, he argued, the committal proceedings were not lawful.

40 I have already held that the committal proceedings were indeed lawful. In any event, there is no basis for the theory of constructive knowledge on the part of the jurors as submitted on the claimant's behalf. The reality of the situation is that, while the ordinary juror might know that a defendant had been committed for trial, a juror would seldom know that a magistrate has expressed an opinion in the terms of s 65(1) in relation to the defendant. Should a defendant have any fears in this respect, they could be communicated to the trial judge who could give appropriate warnings to the jury to the effect that they should not be influenced in any way by the expression of such an opinion. I would add that it is standard practice for judges to inform juries that they are to decide the case solely on the evidence before them. I accordingly considered that the "unfair trial" argument had no substance.

41 I would add that, if the submission were to be correct, it would mean that the system of committal proceedings always results in an unfair trial that has to be tolerated because of legislative fiat. This submission only has to be stated to be rejected.

42 For the above reasons I concluded that the claimant's summons should be dismissed with costs.

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