The claim for relief by way of judicial review
72 In order to demonstrate error on the part of the trial judge in considering the application for a certificate, it was necessary to identify the precise matter in which his Honour was said to have erred, which would in turn have required the resolution of some of the issues of construction noted above. That, however, was not the approach embraced by the applicant.
73 One complaint made by the applicant was that the trial judge failed to follow the "two-step" approach, said in Ramskogler at p 135 (Kirby P) to have been required in Treasurer for the State of New South Wales v Wade (unrep, NSWCA, 16 June 1994) by Mahoney JA. According to this approach, the first step was to determine what were "all the relevant facts"; the second and separate step was to decide the "reasonableness issue". However, failure to approach the matter expressly in those terms does not demonstrate error of law. In Wade, the parties conceded that there was a relevant error of law (at p 3); in Ramskogler, it appeared that the trial judge had acted on the basis that he had an unfettered discretion, without referring in terms to the test provided by s 3(1)(a). Neither case depended upon the failure to adopt a two-step approach. Usually, it will not be possible for a trial judge to determine the reasonableness of the institution of proceedings without identifying the evidence of relevant facts available to the prosecutor. The approach adopted may reveal error, but there is no legal requirement that a particular form of reasoning be adopted, so long as there is an exercise of the statutory jurisdiction conferred on the Court. In any event, no such complaint can be made of the approach of the trial judge in this case.
74 A second complaint was that the trial judge had failed to apply the principles identified in R v Cardona [2002] NSWSC 823 (Hidden J). Cardona was decided without reference to s 3A and without any elucidation of the statutory issues. Hidden J stated at [3]:
"Although reference was made in submissions to material in the possession of the Crown prior to the trial, it is sufficient for present purposes to consider whether it would not have been reasonable for the prosecution to have instituted the proceedings in the light of the evidence as it emerged at the trial."
75 Hidden J continued, apparently understanding the further remarks to be by way of extrapolation:
"As Hunt J … put it in R v Dunne (unrep, 17 May 1990), I must 'put myself in the hypothetical place of the prosecution possessed of knowledge of all the facts which have now become apparent', examining the matter 'with the knowledge gained from such an omniscient crystal ball' …."
76 Reference to "an omniscient crystal ball" should be treated as a rhetorical flourish. It does not obviously assist in understanding the statutory language. Further, the reference to "knowledge" must be understood as a reference to "possession of evidence" of all the relevant facts.
77 A third complaint was that error of law could be discerned in the inadequacy of his Honour's reasons. The concept of inadequate reasons as constituting an error of law was developed in this Court particularly as a ground of appeal from a tribunal, such as the Compensation Court, where appeals lay only with respect to errors of law. Whether such a ground is available as a basis for certiorari is less clear. In Ramskogler, the President held that it was (at 135 and 138) (Sheller JA "substantially" agreeing at 142) and Handley JA accepting the principle but finding there was no relevant contravention, at 141. However, in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 the High Court considered the operation of a statutory provision requiring the Refugee Review Tribunal to prepare a written statement, setting out the decision of the Tribunal on the review, the reasons for the decision, the findings on any material questions of fact and the evidence or any other material on which the findings of fact were based: Migration Act 1958 (Cth), s 430(1). In responding to a complaint that the tribunal decision was reviewable because it failed to make and set out findings of material facts, the joint judgment (McHugh, Gummow and Hayne JJ) explained at [69]:
"It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law …. It may reveal jurisdictional error. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration."
78 If the inadequacy of reasons given by an administrative tribunal pursuant to a statutory obligation does not by itself invalidate the decision, but may demonstrate a failure on the part of the tribunal to exercise its function properly, a similar approach should arguably be adopted in relation to the reasons given by a judicial officer. When the reasons were not part of the record, their inadequacy could not constitute error of law on the face of the record; it is arguable that the statutory expansion of the record did not expand the available categories of error. The fact that such a result may have been achieved (without explicit discussion) in the course of decisions of this Court which held (erroneously as became apparent in Craig) that reasons formed part of the record under the general law, does not warrant the conclusion (without full argument) that such an expansion of the availability of certiorari has now taken place as a result of the statutory variation of the general law definition of the record.
79 The resolution of this broader issue is unnecessary in the present case. It became apparent in the course of argument that the applicant relied upon the reasons to make good his claim that the trial judge committed an error of law. The ground relating to the inadequacy of the reasons was not directed to the evaluative judgment as to the reasonableness of the institution of proceedings, but to the first step of identifying the relevant facts. There is no basis for supposing that his Honour did not identify the facts which he considered material and relevant. Accordingly, the reasons were not deficient. To succeed the applicant had to demonstrate legal error in the approach adopted in identifying relevant facts.
80 Ultimately, counsel for the applicant had some difficulty in articulating his complaint in relation to the reasoning in the judgment. He accepted that it was for the applicant to establish that the institution of proceedings would not have been reasonable on the hypothesised basis, but it was the hypothetical basis which gave rise to difficulty. In part, this arose from the difficulty already noted of construing ss 3 and 3A coherently. At the end of the voir dire, when the jury were directed to acquit, no facts had been "established" in the criminal proceedings other than that the applicant was not guilty of the charge in the indictment. Apart from matters going to procedure and potential prejudice, the only finding made by the trial judge in the criminal proceedings was that, without the additional material, the prosecution was "doomed to failure": at [14]. At one stage, it appeared that counsel was contending that the hopelessness of the prosecution case, so determined, was the relevant fact for the purposes of the costs application.
81 That approach should not be accepted. The cases are replete with statements that the acquittal of an accused is a precondition to an application for a certificate, not a sufficient basis for granting it. As a matter of statutory construction, that follows from the language of s 3(1)(a), which requires the assumption that the prosecution had in its possession "evidence of" all the relevant facts: it clearly does not mean evidence of the final verdict.
82 An alternative approach might have been to contend that his Honour should have, but did not, make findings as to the identity of the person speaking on the intercepts and the accuracy of the translation of the intercepts. Those were critical facts for the purposes of the prosecution and, if they were to be assessed on the basis of the admissible material, his Honour should have found that they were not made out. Once it was established that those facts could not be proved, the unreasonableness of the prosecution could then be appropriately assessed in accordance with the statutory scheme.
83 Although this approach would be somewhat closer to the language of the sections, it would not sufficiently conform to the test in s 3(1)(a) to be accepted. Thus, to take the meaning of the intercepted conversations, one issue for determination was the correct translation of the conversations, partly in Arabic, into English. It was from those conversations that the prosecution sought to draw an inference that the applicant, being a party to the conversations, was involved in supplying a prohibited drug. The facts to which s 3(1)(a) refers must in this connection be the recorded conversations, the identity of the person speaking on the mobile phone and the meaning of the words in Arabic. At the time the prosecution was instituted, the relevant officer no doubt believed that he or she had evidence of each of these material facts. His Honour held that these facts warranted the institution of the proceedings. There is, and can on the present application, be no challenge to that judgment. The only question is whether it reflected the correct approach.
84 For the applicant to succeed in challenging the approach, he had to demonstrate that the trial judge should either have disregarded the material considered on the voir dire (a course which he eschewed) or established that his Honour failed to take into account the fact that, unbeknownst to the prosecution at the time the proceedings were instituted, the evidence was deficient, perhaps that the officer ought reasonably to have realised the deficiency, and that by the time it sought to proceed with the trial, having identified the deficiency, the test of the on-going reasonableness of its conduct should have included an assessment of the possibility that the additional evidence would be rejected. This last course was not expressly eschewed, but neither was it relied upon. In order for the applicant to place reliance upon that approach, it would have been necessary for the case before the trial judge to be presented on that basis. There is no suggestion in the judgment that such a course was proposed. If it had been proposed and not addressed, a quite separate challenge might have been mounted. All that can usefully be said for present purposes is that, on the case presented to this Court, the applicant failed to identify a relevant error on the face of the record.