Supreme Court of SA|1994-11-04|Before: Mr P, Olsson J

DIRECTOR OF PUBLIC PROSECUTIONS (CTH) v. PHILLIP ANDREW BAYLY No. SCCRM 94/406 Judgment No. 4842 Number of pages - 28 Criminal law and procedure - jurisdiction, practice and procedure (1994) 75 A Crim R 549 [1994] SASC 4842 (4 November 1994)

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J

CWDS Criminal law and procedure - jurisdiction, practice and procedure - Accused charged with Commonwealth of fence - committing magistrate refused adjournment fob special reasons application

handup committal - accused claiming that committal without entitlement of accused to cross examine prosecution witnesses violating constitutional guarantee of a fair trial - accused's argument rejected - in circumstances magistrate's refusal of adjournment inappropriate

Counsel for DPP: Mr S W Tilmouth QC with Mr P J Rice

Counsel for accused: Mr P Faris QC with Mr D Grace

JUDGE1 OLSSON J The accused stands charged with the offence of being knowingly concerned in the importation of a commercial quantity of cocaine, contrary to the provisions of section 233B(1)(d) of the Customs Act, 1901 (Cth).

The broad narrative facts giving rise to the prosecution, as asserted in the declarations and other documentation, may be summarised in relatively brief terms. I shall, as a matter of convenience, recite them in direct narrative form. It, of course, remains to be seen whether, in due course, all of those facts can be proved.

On 6 April 1993 the Australian Customs Service ("ACS") came into possession of a crate, the consignee of which was specified to be Mr John Bagalini, c/- Adelaide Post Office, Adelaide City, Australia. It was landed in Melbourne from the MV Direct Kiwi ex Los Angeles, California, USA.

The crate was transported to Adelaide under bond for further examination and ultimate delivery. It arrived in Adelaide on 8 April 1993 and was opened for inspection. It was found to contain a round wooden table.

The consignee, Bagalini, actually attended at the ACS Customs House at Port Adelaide on 8 April 1993 and enquired about the crate. He was told that, at that stage, it had not been cleared through Customs, as enquiries had to be undertaken in relation to a snake skin covering under the lacquered finish on the table top. Bagalini was, at that time, requested to complete an "unaccompanied effects statement" in which, inter alia, he declared that he was present when the crate was packed and was fully aware of its contents. He declared that it did not contain any narcotics or drugs of dependence.

ACS subsequently conducted a thorough examination of the table, including the use of x-ray procedures and drilling small holes in the underside of the table. The x-ray examination revealed the presence of a number of cavities within the table top, which appeared to contain a foreign substance. The drilling procedure revealed that the table top contained a white powder, which subsequently tested positive to cocaine.

Arrangements were made to place Bagalini under police surveillance, following which a so-called "controlled delivery" of the table to him was permitted to take place.

On 13 April 1993 Bagalini collected the table and thereafter conveyed it to his hotel room at 15 Hindley Street Adelaide (Room 303 at the Paringa Motel).

It was established by the ACS that Bagalini, whose date of birth was recorded as 16 September 1951, had entered Australia at Sydney on 31 March 1993 on flight UA815, having produced his US passport on entry. He had immediately travelled to Adelaide. It appeared that, after staying one night at the Ambassadors Hotel in the city, he booked into the Paringa Motel for the period 1-14 April.

After taking the crate containing the table to his hotel room, Bagalini was observed making a number of telephone calls from public telephone boxes in the Hindley Street area.

On the evening of 13 April a search warrant was executed on room 303. It was noted that the table had been removed from the crate, but was still intact. Bagalini was arrested and charged with a drug related offence. After interview by federal police officers, it emerged that Bagalini was only acting as a courier in relation to the table; and that it was his understanding that the intended recipients were shortly to make contact with him to take delivery of it.

Upon Bagalini agreeing to co-operate, he was released into police custody and arrangements were put in place to facilitate a "controlled" delivery of the table.

At about 3.00 pm on 14 April, a man named Gibson came to the Paringa Motel and there handed Bagalini a plastic bag containing $27,600 in Australian currency. Shortly thereafter a person named Bryant, who was associated with Gibson, arrived, driving a Budget Hire vehicle. In the meantime Bagalini and Gibson had carried the crate containing the table downstairs and placed it on the footpath in front of the motel, in preparation for its collection. The three men proceeded to attempt to load the crate, with the table in it, into the hire vehicle, whereupon Gibson and Bryant were also arrested by federal police officers.

On being searched, Bryant was found to be in possession of a mobile telephone, $2,700 in Australian currency, and a piece of paper containing a handwritten flight itinerary. On return to room 303 the police officers recovered a plastic bag containing $A27,600 and a piece of paper indicating currency exchange rates (as between Australian and US dollars) for $A27,600.

It was subsequently ascertained from Bryant by police officers that both he and Gibson had flown to Adelaide from Melbourne, with the intention of transporting the table back to that city, by means of the hire vehicle. Bryant professed that the table belonged to Gibson and that he, Bryant, had merely come to Adelaide, so that he could visit his sick father at Kingston on the way back.

Police officers subsequently confirmed that Gibson had used an American Express Card to pay $616 for a three day hire of the vehicle driven by Bryant.

The table was dismantled by federal police officers on 15 April. It was found to contain 12 heat sealed plastic bags, which were secreted within hollowed out cavities inside the top of it. These bags contained a gross weight of 5093 grams of white powder. A later analysis revealed that the powder was a compound containing high grade cocaine hydrochloride. The pure equivalent quantity of cocaine was a total net weight of 3804.8 grams.

It should be noted that schedule VI of the Customs Act 1901 deems amounts in excess of 2000 grams of cocaine to be a commercial quantity, for the purposes of the statute.

Bagalini and Gibson eventually pleaded guilty to drug offences and have been sentenced in respect of them. Bagalini and Gibson initially co-operated with the police and agreed to give evidence against Bryant, who, in turn, also ultimately pleaded guilty and was also sentenced.

The prosecution case in this matter is that Bayly, who was eventually charged on 17 September 1993, organised the importation of the cocaine into Australia. It is said that he did so in concert with a person named Sterling, with whom Bagalini had been associated since about July 1992.

The essential features of the Crown case against Bayly are said to be that:- - he made arrangements with Sterling, as the US supplier, to have the cocaine imported into Australia - it being alleged that this was one only of what were in fact several transactions of that type entered into between the two of them. - he provided finance for the purchase of the cocaine, by way of cheques sent, prior to the importation, to the United States. These were drawn on an account in Melbourne in the name of P.J. Williams.

The conduct of the present prosecution has had a somewhat chequered history.

It was initiated at a much later date than the prosecutions of the other persons involved, due, it is asserted, to the need for an ongoing investigation of the financing of the transaction and the processing of telephone call intercepts.

Both Bryant and Bayly were originally represented by the same firm of solicitors. However, when, on 24 November 1993, Bryant ultimately elected to plead guilty and indicated that he may be prepared to give evidence against Bayly, a conflict of interest arose. It became necessary for Bayly to obtain separate legal representation.

Bayly initially appeared before the Magistrates Court on 17 September 1993, at which time he was in custody. He was granted bail on 20 September 1993, on quite stringent conditions.

On 1 November 1993 the prosecutor made application to a magistrate for an extension of time within which to serve and file committal declarations, due to the need to obtain signed material from the United States and the complexity of the evidentiary case. This application was stood over until 15 November 1993.

On the latter date orders were made to the effect that:- - declarations were to be filed and delivered by 29 November 1993 - assuming such delivery, Rule 20.02 notices were to be given by the accused by 13 December 1993 - a special reasons hearing was to be scheduled for 14 December 1993.

It appears that Mr Lister, the present solicitor for Bayly, was not instructed to act for him until some time early in December 1993, by which time certain declarations had been served on Bayly personally.

What thereafter occurred is best summarised in the following excerpts from Mr Edson's affidavit sworn on 25 August 1994 and filed in the Federal Court:- "11. On 22 December 1993, I attended at the Adelaide Magistrates' Court before Mr Gurry SM. Mr Bayly was again represented by Mr Lister. It was Mr Lister's application for a further remand in this matter. Mr Lister explained to Mr Gurry the circumstances as to why he required a further remand. He stated that he had been instructed in early December, and had only received the declarations during the previous week. He advised that there was a problem with funding, due to Mr Bayly's assets having been restrained pursuant to the Proceeds of Crime Act 1984 by the Commonwealth Director of Public Prosecutions Office in Melbourne. He further stated that the brief was significant, and involved complex issues of fact and law. He stated that he wanted to brief counsel for an opinion, and to draft the Rule 20 Notice.

Mr Lister further explained that there (sic) proceedings pending in the Victorian Supreme Court to have funds released pursuant to Section 48 Proceeds of Crime Act, to meet legal expenses in representing Mr Bayly. I did not oppose the

application for a further remand. Mr Gurry SM indicated that he was not prepared to grant the remand, and asked specifically whether there was sufficient evidence to commit for trial. He indicated that he wanted the matter to proceed by way of declaration committal on that occasion. Mr Lister reiterated his earlier submissions, but Mr Gurry SM refused to grant the remand and listed the matter for either a declaration committal or Special Reasons application at 12.00 pm on 23 December 1993.

After further discussions with Mr Gurry, on 22 December 1993, Mr Gurry SM permitted the matter to be remanded to Friday, 14 January 1994, for either a declaration committal or a Special Reasons application. He ordered that the Rule 20 Notice be filed in court and served on the prosecution by 4.30 pm on 13 January 1994.

On 13 January 1994, at 9.30 am, the matter was called on in the Adelaide Magistrates' Court at the request of Mr Lister, in order that he might make submissions about his progress in obtaining funding in the matter, and to seek a further remand, in order to file a Rule 20 Notice. Mr Lister had contacted me during the week, commencing the 7 January 1994, to advise me of his intention to call the matter on.

The matter was called on before Mr Gurry SM, who advised that Mr Ackland SM had the declarations and was the magistrate who would be hearing the matter. He ordered that Mr Lister's application be heard by Mr Ackland SM. At about 9.45 am, Mr

Lister and I appeared before Mr Ackland SM. Mr Lister requested that his application be heard at 11.30 am, due to other commitments. At 11.30 am, Mr Lister and I appeared before Mr Ackland SM. Mr Lister then made an application for a further remand of about 3 to 4 weeks to enable him to brief counsel for an opinion, and to draft the Rule 20 Notice. Mr Lister explained the reasons for his application, as set out in paragraph 11 of this affidavit. He explained that an application had now been made to the (Victorian) Supreme Court, seeking the release of funds to brief counsel, although that application had not yet been finalised. He expected that there would be no difficulties with obtaining the funds, which would be available in the near future. Mr Ackland SM inquired about the attitude of the prosecution to the application, and I stated that I did not oppose a further remand for 3 weeks. I did however express some concern about an extensive delay especially in view of the time which had elapsed from the date of the arrest, and the time limitations specified by the Chief Justice concerning the committal of accused from the date of their arrest."

The learned magistrate refused the application for a further remand, because of caseflow management considerations. He confirmed that the special reasons application and/or committal hearing would remain listed for the following day.

When the matter was actually called on for hearing on 14 January 1994 Mr Lister renewed his application for a further remand and indicated that he simply was not in a position to make any submissions on behalf of Bayly. The learned magistrate thereupon considered the declarations filed and committed Bayly for arraignment before the District Court on 14 February 1994.

An indictment was signed by or on behalf of the Commonwealth Director of Public Prosecutions and filed in the District Court on 28 January 1994.

What then transpired is described in Mr Edson's affidavit in these terms:- "17. On 14 February 1994, the matter was called on for arraignment in the District Criminal Court before His Honour Judge Lunn. Mr Lister and Mr Niemann of our office appeared. Mr Lister informed His Honour of the application which had been filed in the Federal Court, and requested that the arraignment be deferred pending the resolution of this application. Mr Niemann opposed the application, stating that the Director of Public Prosecutions had not been served with any process in the Federal Court. He stated that as an indictment had been filed any proceedings in the Federal Court concerning the Magistrate's committal order were too late and that if the accused had any concerns about his committal, he should attempt to resolve it by way of an abuse of process application in the Supreme Court. Judge Lunn said that a short adjournment was not unreasonable and deferred the arraignment to the general arraignment list on 28 February 1994 at 10.00 am.

On 28 February 1994, Mr Bayly appeared in the District Criminal Court before Judge Taylor. On this occasion he filed an Abuse of Process Application, and the matter was remanded to 15 March 1994 for a status conference to set a date for hearing. A hearing was subsequently fixed by Judge Burnett at the status conference for the Abuse of Process Application on 20 May 1994 at 10.00 am.

On 20 May 1994, the Abuse of Process Application was heard by His Honour Judge Allan in the District Court, during which Mr Bayly's counsel sought an order to stay the Information before the court and to remit the matter back to the Adelaide Magistrates' Court for consideration of a Special Reasons Application, pursuant to Rule 20 of the Summary Procedure Act 1992, (sic) and further committal proceedings. The application was refused by Judge Allan, after which, Mr Bayly was arraigned on the Information. Mr Bayly pleaded not guilty to the offence of being knowingly concerned in the importation of a commercial quantity of a prohibited import, namely cocaine, contrary to Section 233B(1)(d) Customs Act 1901. The matter was then remanded to a status conference on 2 June 1994, in order to fix a date for trial.

On 2 June 1994, a status conference was conducted before His Honour Judge Lee in the District Criminal Court. The prosecution was recommended as a category 2 offence, and the trial has been listed for a 7 day hearing on Tuesday, 8 November 1994."

Upon my assignment as the trial judge the proceedings were called on before me for a pre trial conference on 20 October 1994, Mr Faris QC, appearing for Bayly. At that time he gave notice of a significant number of preliminary issues which required to be addressed before the empanelment of a jury. Notable amongst these was a challenge to the validity of certain of those provisions of the Summary Procedure Act, 1921 ("the SPA") which were enacted by amending Act No 72 of 1991; and now comprise sections 104-107 inclusive of the statute.

In brief terms, Mr Faris QC, inter alia, intimated that he would seek to argue that, insofar as subsection (2) of section 106 has the effect of limiting the right of the defence to cross examine Crown witnesses, at the committal stage, to situations in which special reasons can be demonstrated, it is invalid in relation to prosecutions under federal legislation. He also signalled an intention of challenging the propriety of the attitude which was in fact adopted by the Magistrate to the application by Mr Lister for an adjournment, based, as it was, on caseflow management principles.

The attack upon the validity of the statutory provisions prescribed by the SPA was made in the context of an application to stay the trial of Bayly until such time as proper committal proceedings had taken place. The nature of the argument sought to be presented necessarily brought the situation within section 78B of the Judiciary Act, 1903 (Cth). Appropriate notices were therefore given to all Attorneys General, as required by that section. In the event Mr Tilmouth QC appeared to lead the Crown Prosecutor for the purpose of arguing the preliminary matters sought to be raised by Mr Faris QC. No other parties sought to be heard as a consequence of the service of the notices.

In essence the initial argument advanced by Mr Faris QC rested upon what, he contended, was the guarantee of a fair trial conferred by the common law of the Commonwealth and inferred by Chapter III of the Australian Constitution.

The primary contention advanced by Mr Faris QC was to the effect that the common law of the Commonwealth and also Chapter III of The Constitution (Cth), by necessary implication, confer on an accused person the right to a fair trial; and that is simply not possible if the person charged does not have a full and unfettered right to a committal hearing, at which counsel is able, in an unrestricted manner, to explore the strengths and weaknesses of the Crown evidentiary case, by a full cross examination of proposed witnesses at that time. Thus, to the extent that section 106 of the SPA purports to restrict any right to cross examine witnesses, it necessarily conflicts with the constitutional right of an accused person.

That section stipulates as follows:- "Taking of evidence at preliminary examination

106 (1) Where a charge is not admitted by a defendant at a preliminary examination, the following procedure applies: (a) the prosecutor will tender the statements and other material filed in the Court 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 for oral examination if - (i) the defence has given notice, in accordance with the rules, that it requires production of that witness; and (ii) the Court grants leave to call that witness for oral examination; (c) the prosecutor may, by leave of the Court, call oral evidence in support of the case for the prosecution; (d) the defendant may give or call evidence; (e) the prosecutor may call evidence in rebuttal of evidence given for the defence.

(2) The Court will not grant leave to call a witness for oral examination under subsection (1) unless it is satisfied that there are special reasons for doing so.

(3) In determining whether special reasons exist for granting leave 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;

(b) the need to ensure that the issues for trial are adequately defined; (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 or a child under the age of 12 years, the Court must not grant leave 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."

His secondary argument was to the effect that, in any event, the conduct of the committing magistrate, in insisting upon a rigid observance of established caseflow management procedures and refusing an adjournment on 14 January 1994, also had the practical effect of denying Bayly a fair trial.

What was here under attack was the implementation of procedures envisaged by Rules 7 to 9 inclusive and Rule 20 of the Magistrates Court Rules, related to its criminal jurisdiction. These read as follows:- "7.00 Criminal jurisdiction 7.01 In this section 'the Act' means the Summary Procedure Act 1921 unless otherwise provided.

8.00 Caseflow management 8.01 These rules are made for the purpose of establishing orderly procedures for the conduct of litigation in the court and of promoting the just and efficient determination of such litigation. They are not intended to defeat the determination of litigation according to the merits of the case of litigants who are genuinely endeavouring to comply with the procedures of the court, and are to be interpreted and applied with the above purpose in view. 8.02 With the object of - (a) promoting the just determination of litigation; (b) disposing efficiently of the business of the court; (c) maximising the efficient use of available judicial and administrative resources; and (d) facilitating the timely disposal of business at a cost affordable by the parties; proceedings in the court will be managed and supervised in accordance with a system of positive caseflow management. These rules are to be construed and applied and the processes and procedures of the court conducted so as best to ensure the attainment of the above objects. 8.03 The practice, procedure and processes of the court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for the identification of the factual and legal issues bona fide in dispute between the parties and the preparation of the case for trial or other disposition. 8.04 To these ends - (a) Parties to proceedings are required to be ready to proceed to trial by the date of the hearing at which a trial date is set. (b) Parties must fully comply with rule 26. (c) A trial which has been fixed will not be postponed unless the justice of the case, assessed having regard to the obligations of the parties pursuant to paragraph (a) hereof, so requires. 8.05 In the event that any application is made at trial to amend the complaint, information, application, particulars or other process the court may, if the amendment would cause the postponement or adjournment of the trial, refuse such application, if it sees fit, in order to protect the integrity of the caseflow management system and to implement the court's requirement that trials proceed at the time appointed for trial, notwithstanding that any injustice to the opposing party might have been avoided by an order for costs adjournment or otherwise. 8.06 The court may from time to time establish and publish time performance standards for the various stages of proceedings before it as may be necessary and desirable for the most efficient disposal of its business and to this end may establish and promulgate case listing tracks on a differential basis by written practice direction. All proceedings thereafter shall be in accordance with such standards. 8.07 The court may, at any time, of its own motion on notice to the parties review the progress of proceedings and make

such orders or give such directions to lead to their efficient and timely disposal and make such orders concerning time defaults committed by any party as it may consider just and expedient. 8.08 Where there is time default or the conduct of a party is otherwise contrary to the objects stated in rule 8.02 the court may dismiss the proceedings and may do so in order to protect the integrity of the caseflow management system and to implement the court's requirements that matters proceed at the time fixed for hearing whether by way of trial or otherwise notwithstanding that any injustice to the opposing

party might have been avoided by an order for costs or some other order.

9.00 Standards 9.01 The court pursuant to rules may establish and publish standards with respect to any aspect of legal process. ...

20.00 Preliminary examination 20.01 The prosecutor shall file and serve the documents specified in section 104(1)(a) within such period not exceeding six weeks as the court at the defendant's first appearance before the court may specify. 20.02 The defendant must by the court appearance next following two weeks after service of the section 104(1)(a) documents give notice in writing to the court and to the prosecution of the witnesses in relation to whom application to examine orally will be made and a brief outline of the reason they are required. 20.03 A statement referred to in s104(3)(a) of the Act, must be verified as follows: 'This statement consisting of ... page/s signed by me is true to the best of my knowledge and belief. I know that this statement is to be used for the purposes of a prosecution and that if it contains material which I know to be false or misleading, I will be guilty of an offence. Dated the ........ of .......... 19 ... Signature ............................. Witnessed by ..........(name) of ..........(address) Signature of Witness .................."

It is, of course, notorious that these rules, inter alia, recently formalised earlier informal arrangements which were originally catalysed by the Chief Justice in order to overcome inordinate delays in bringing accused persons to trial. Such delays had become almost endemic in certain types of case and, at times, led to well nigh scandalous situations, as well as an unacceptable waste of scarce public resources.

Some of these aspects were indirectly commented upon by the Chief Justice in the course of his judgment in Goldsmith v Newman and the State of South Australia (1992) 59 SASR 404 ("Goldsmith"). He there made these points:- - the new statutory procedures related to the conduct of committal proceedings impose heavy obligations upon the prosecution to make full disclosure of the prosecution case and evidence available, or known to, the prosecution prior to any preliminary examination, albeit in the form of written declarations, rather than by way of oral testimony. - the present provisions, in reality, represent a final stage of what has, in fact, been a developing situation which has been taking place over a lengthy period of time. It has long been the situation that much of the material acted upon at committal proceedings has been in the form of written "declarations". - the evident purpose of the current regime is to curtail the scope of oral examination of witnesses, thereby reducing the burden on the justice system caused by lengthy preliminary hearings, to the extent that that is consistent with the interests of justice. - whilst section 106 of the Act stipulates that leave to cross examine witnesses at a preliminary hearing may only be given for "special reasons" and that this concept involves having regard to:-
- the need to ensure that the case for the prosecution is adequately disclosed;
- the need to ensure that the issues for trial are adequately defined;
- the Court's need to ensure (subject to the Act) that the evidence is sufficient to put a defendant on trial the additional requirement that "the interests of justice" must also be considered is so wide as to confer a considerable latitude on the part of the presiding magistrate.

The learned Chief Justice adverted to what he had earlier said in The Queen v Harry; ex parte Eastway (1985) 39 SASR 203, as to the purpose of the preliminary examination process. He had there commented (at 208-209):- "The question to be decided by the magistrate or justice at the conclusion of the preliminary examination is whether there is sufficient evidence to put the accused on his trial. Ensuring that the accused will not be put on trial without sufficient evidence to justify that course has been described by Gibbs ACJ and Mason J as the 'principal purpose' of the preliminary examination: Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75. But it is not the only purpose. The examination also serves the purpose of acquainting the accused with the case which is to be made against him at trial and of affording him an opportunity to question witnesses with a view to eliciting evidence which may assist the defence at trial. When discussing the consequences to an accused of depriving him of committal proceedings, Gibbs ACJ and Mason J in Barton's case, pointed out that 'in such a case the accused is denied (1) knowledge of what the Crown witnesses say on oath (2) the opportunity of cross-examining them'. These purposes of a preliminary hearing were emphasized by Stephen J in the following passage: 'These factors may, and in the present case do, mean that loss by the accused of the chance of discharge by the committing magistrate is by no means the most serious detriment which absence of committal proceedings imposes upon an accused. An accused also loses the opportunity of gaining relatively precise knowledge of the case against him and, as well, of hearing the Crown witnesses give evidence on oath and of testing that evidence by cross-examination. A court in exercise of its power to ensure a fair trial, can do much to reduce the deleterious effect of the first two of these losses by ensuring that the accused is furnished with particulars of the charge and proofs of evidence. But the loss of the opportunity to cross-examine Crown witnesses before the trial will be irremediable. How serious this will be to the accused will depend upon the nature of the offence charged and of the Crown's evidence. It is likely to be the most serious detriment which absence of prior committal proceedings imposes upon the accused.'

In The Queen v Kelly; Ex parte Hoang Van Duong I pointed out that 'a preliminary hearing provides a valuable opportunity for the defence to explore issues and to investigate facts in a way which is not practical at trial'. Deprivation of an accused of these benefits is reason why 'committal proceedings are an important part of the protection ordinarily afforded to an accused in the criminal process': Barton v The Queen per Stephen J at p105; and why a trial without a prior preliminary hearing has been described as 'a

serious departure from the ordinary course of criminal justice': Barton v The Queen, per Gibbs ACJ and Mason J at p100, and as 'a serious procedural irregularity' by Yeldham J in a passage quoted by Stephen J in Barton's case."

Later in the same judgment King CJ made these points (at 213-214):- "If committal proceedings are to serve their proper purpose in the course of criminal justice without becoming an insupportably costly and delaying burden on the system, a practical, fair and sensible approach will be needed from all parties. The prosecutor should submit to the magistrate full statements from all witnesses who have material evidence to give, in the absence of good reasons of the kind discussed above, or who are likely, on the then state of the prosecutor's information, to form part of the prosecution's case at trial. The defence ought to seek production for cross-examination of only those witnesses who are likely to yield information which will be helpful to the defence. Cross-examination should be limited in a realistic way bearing in mind that the hearing is a preliminary hearing and not a trial, and the magistrate should not hesitate to exercise his power to restrict prolix and unnecessary questions: The Queen v Kelly. Attempts to prolong proceedings by unreasonable adjournments for the purpose of pursuing remedies in the Supreme Court should be resisted firmly."

It seems to me that the subsequent re-codification by the legislature of the aim of the preliminary examination and the method of attainment of it was a specific attempt, on its part, to come to terms with the lastmentioned aspects.

By section 107 the SPA spelt out, in specific terms, the object of the committal procedure and the tests to be applied in the future, as under:- "Evaluation of evidence at preliminary examination

107 (1) The following principles govern the Court's approach to evidence at a preliminary examination: (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 preliminary examination, reserving any dispute as to its admissibility for determination by the Court of trial. ..."

In referring to these provisions King CJ pointed out, in his judgment in Goldsmith, that (at 410-411):- "The purposes and function of preliminary hearings of charges of indictable crimes was discussed in my reasons for judgment in R v Harry; Ex parte Eastway and it is unnecessary to repeat that discussion. What was there said remains valid subject to the modifications necessarily inherent in the new provisions. The new provisions have modified the purposes and function of preliminary hearings in three ways. First,

proof of facts by means of statements in writing without oral examination or cross-examination has been made the norm.

Secondly, issues of credibility are withdrawn from the court conducting a preliminary hearing. The test posed in s107(1)

for sufficiency of the evidence to put the defendant on trial is that 'the evidence, if accepted, would prove every element of the offence.' It is no longer open to the court to refuse to commit on the ground that the evidence, although sufficient in law, is too weak or unsatisfactory, by reason of lack of credibility of prosecution witnesses, to justify putting the defendant on trial. Thirdly, issues of admissibility are to be left to the trial court and the evidence is to be admitted at the preliminary hearing unless admissibility is unarguable. Fourthly, oral evidence is to be allowed if, but only if, special reasons exist for permitting such evidence. Subject to those modifications, the purposes and function of a preliminary hearing, in the light of which the expression 'special reasons' must be understood, remain as discussed in R v Harry; Ex part Eastway.

Special reasons for granting leave for oral examination having regard to the criteria in s106(3) will exist in a variety of circumstances and it would be futile to attempt an enumeration even of general categories of such circumstances. A judgment will have to be made by the court conducting the preliminary hearing in the light of the circumstances of the particular case. Some general observations may be made. Proof of facts by means of written statements is the norm and

special reasons involve some facts or circumstances which require a departure from that norm having regard to one or more of the indicated criteria. A desire for cross examination for the purpose of affecting the credibility of a witness in the eyes of the court conducting the hearing, is not sufficient. To that extent certain of the observations by Wells J in R v Gun; Ex parte Stephenson (1977) 17 SASR 165 (at 187-188), as to what may constitute special reasons have no application to the present legislation. Such disadvantage as the defence may suffer in consequence of being deprived of the opportunity of cross-examining a witness twice and thereby testing the witness's ability to tell a consistent story, is not sufficient, as that would not be a sufficient departure from the norm to amount to special reasons. A desire to conduct an exploratory cross examination without a definite object based on solid grounds, but in the hope of unearthing something which might assist the defence, is plainly not sufficient.

While proof of facts by means of written statements without oral examination, is the norm, the decision as to whether

special reasons exist for oral examination, should not be approached in an unduly restrictive way. Such decision should serve the purposes of the preliminary hearing and the interests of justice, including the establishment of the conditions for a fair trial in the trial court. They must be the paramount considerations.

It may be helpful to magistrates to indicate some circumstances which may amount to special reasons. 1. It may appear that there is sound reason to suppose that some degree of cross-examination will eliminate possible areas of contention and refine the matters really in dispute. 2. Cross-examination may be desirable to establish important facts as the foundation of a defence or to eliminate any possibility of a particular defence. For example, it may be important to ascertain from witnesses in advance of trial whether the defendant showed signs of intoxication or irrationality at relevant times. 3. It may be necessary for a fair trial that the defence have a limited opportunity to explore in advance of trial key issues which may be relevant to possible defences such as bona fide claim of right or duress. 4. In some cases some limited questioning of scientific witnesses may be necessary to explore possible avenues of inquiry as to alternative hypothesis, or the need for further testing or analysis. 5. There may be reason for dissatisfaction with the extent of prosecution disclosure by filing statements and documents pursuant to s104 or otherwise, and cross-examination may appear to be the best way to obtain such disclosure."

It is stating the obvious to say that those pronouncements, made in 1992, have formed the basis of all committal proceedings since conducted in this State, as has the exhortation of the Chief Justice, in the same case, that magistrates (at 411):- "... should insist on the disclosure of solid grounds for supposing that oral examination will make a significant contribution to the achievement of a fair trial. Much will depend in some cases on the efforts made by the defence to obtain disclosure of information from the prosecution and the prosecution's response to such efforts. The success of the new system requires that magistrates be active and perceptive participants in the process of establishing the conditions for a fair trial without burdening the justice system with protracted oral hearings."

In essence Mr Faris QC contends that Goldsmith is inapplicable to offences under Commonwealth legislation and/or was wrongly decided, insofar as it purported to be of universal application to ALL preliminary examinations.

The basis of that argument was essentially founded on the reasoning expressed in Barton, supported by other dicta to be discerned in authorities such as Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 ("Dietrich") and Jago v The District Court of New South Wales and Others [1989] HCA 46; (1989) 168 CLR 23 ("Jago").

It must be accepted that Chapter III of The Constitution in general (and section 80 of it in particular) have been construed by the High Court as conferring on an accused person what has loosely been described as the right to a fair trial.

This was recently reiterated in Dietrich by both Deane and Gaudron JJ.

Deane J made the point that, insofar as the exercise of the judicial power of the Commonwealth is concerned, that principle is entrenched by The Constitution's requirement of the observance of the judicial process and fairness that is implicit in the vesting of the judicial power of the Commonwealth exclusively in the courts which Chapter III of The Constitution designates. He went on to say (at 326):- "... Strictly speaking, the requirement that the trial of accused of a crime be fair, being a legal one, is encompassed by the requirement that such a trial be in accordance with law. Nonetheless, it is desirable that the requirement of fairness be separately identified since it transcends the content of more particularized legal rules and principles and provides the ultimate rationale and touchstone of the rules and practices which the common law requires to be observed in the administration of the substantive criminal law."

In the course of her judgment Gaudron J discussed the concept in these terms (at 362-364):- "... It is fundamental to our system of criminal justice that a person should not be convicted of an offence save after a fair trial according to law. The expression 'fair trial according to law' is not a tautology. In most cases a trial is fair if conducted according to law, and unfair if not. If our legal processes were perfect that would be so in every case. But the law recognizes that sometimes, despite the best efforts of all concerned, a trial may be unfair even though conducted strictly in accordance with law. Thus, the overriding qualification and universal criterion of fairness]

The fundamental requirement that a trial be fair is entrenched in the Commonwealth Constitution by Ch.III's implicit requirement that judicial power be exercised in accordance with the judicial process. Otherwise the requirement that a trial be fair is not one that impinges on the substantive law governing the matter in issue. It may

impinge on evidentiary and procedural rules; it may bear on when and where a trial should be held; in exceptional cases it may bear on whether a trial should be held at all. Speaking generally, the notion of 'fairness' is one that accepts that, sometimes, the rules governing practice, procedure and evidence must be tempered by reason and commonsense to accommodate the special case that has arisen because, otherwise, prejudice or unfairness might result. Thus, in some cases, the requirement results in the exclusion of admissible evidence because its reception would be unfair to the accused in that it might place him at risk of being improperly convicted, either because its weight and credibility cannot be effectively tested or because it has more prejudicial than probative value and so may be misused by the jury. In other cases, the procedures may be modified, for example, to allow evidence to be given through an interpreter, or to allow for special directions to counteract the effect of pre-trial publicity or even something said or done in the trial itself. Sometimes the venue may be changed to counteract some perceived difficulty in obtaining a fair trial in the area in which the offence was committed; in other cases proceedings may be adjourned, for example, to enable evidence to be checked or to allow for pre-trial publicity to abate. The examples are not exhaustive. They are, however, sufficient to show that the requirement of fairness is, and, in various different contexts, has been recognized as, independent from and additional to the requirement that a trial be conducted in accordance with law.

The requirement of fairness is not only independent, it is intrinsic and inherent. According to our legal theory and subject to statutory provisions or other considerations bearing on the powers of an inferior court or a court of limited jurisdiction, the power to prevent injustice in legal proceedings is necessary and, for that reason, there inheres in the courts such powers as are necessary to ensure that justice is done in every case. Thus, every judge in every criminal trial has all powers necessary or expedient to prevent unfairness in the trial. Of course, particular powers serving the same end may be conferred by statute or confirmed by rules of court."

She went on, however, to make the important point that what is fair very often depends upon the circumstances of the particular case and that "notions of fairness are inevitably bound up with prevailing social values"; for that reason, the inherent powers of a court to prevent injustice are not confined within closed categories.

In this regard it need only further be noted that, in Jago, Mason CJ expressed the view that there is no reason why the so-called right to a fair trial should not extend to the whole course of the criminal process. It is, he said, inconceivable that a trial which could not fairly proceed should be compelled to take place, on the grounds that such a course did not constitute an abuse of process.

It is against the background of those processes of reasoning that the High Court has consistently upheld the power of a trial court to stay a trial on the ground that the trial would not, in the circumstances, accord fairness to an accused person.

So it is that Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 ("Barton") falls to be viewed in such a context.

It must, at the outset, be noted that Barton focused on a situation in which an Attorney-General presented ex officio indictments in circumstances in which it was patent that the Crown was positively attempting to avoid the conduct (or further conduct) of committal proceedings. What was said by the Judges of the High Court in relation to that case is to be read in that light. Moreover, it must firmly be borne in mind that the dicta contained in the judgments in that case were the product of a very different environment - one in which the very real practical problems sought to be addressed by modern schemes of so-called "hand up" committals - which have now become widespread throughout Australia - were apparently not seen to exist, at least as a widespread problem, despite a contrary view expressed by Murphy J which is hereafter recited.

It is, I think, beyond question that the enormous expense and resource problems associated with the old, almost laissez faire, committal processes and, as time went by, their not infrequent abuse, gave birth to procedures such as those now enshrined in the SPA and Rules - in an attempt to evolve a system which was both fair and also realistic in terms both of utility and cost to the community, that is to say, to adopt the phraseology of Gaudron J, in terms of prevailing social values.

In their joint judgment in Barton Gibbs ACJ and Mason J (as he then was) emphasised that committal proceedings, in the context of the then current legislation of New South Wales, constituted an important element in the protection which the criminal process gave to an accused person. Whilst conceding that the primary purpose was to ascertain whether there was sufficient evidence to warrant an accused being put on trial, their Honours considered that the ordinary course of the committal process also conferred on an accused:- - knowledge of what the Crown witnesses say on oath - the opportunity of cross examining them - the opportunity of calling evidence in rebuttal - the possibility that the magistrate will hold the evidence insufficient to put the accused on trial

Their ultimate conclusion was to this effect (at 100-101):- " ... It is now accepted in England and Australia that committal proceedings are an important element in our system of criminal justice. They constitute such an important element in the protection of the accused that a trial held without antecedent committal proceedings, unless justified on strong and powerful grounds, must necessarily be considered unfair. For us to say, as has been suggested, that the courts are concerned only with the conduct of the trial itself, considered quite independently of the committal proceedings, would be to turn our backs on the development of the criminal process and to ignore the function of the preliminary examination and its relationship to the trial. To deny an accused the benefit of committal proceedings is to deprive him of a valuable protection uniformly available to other accused persons, which is of great advantage to him, whether in terminating the proceedings before trial or at the trial."

Stephen J expressed the opinion that the loss of the opportunity to cross examine Crown witnesses was irremedial, but that how serious that would be in a particular case will depend upon the nature of the Crown's evidence and the offence charged.

Wilson J did not align himself with those views. He made the important point that, although it will ordinarily do so, a committal proceeding is not designed to aid an accused person in the preparation of his defence (Moss v Brown (1979) 1 NSWLR 114) - a fact which is borne out by the situation that the Crown has a discretion as to the evidence which it will tender at the committal (cf Reg v Epping and Harlow Justices; ex parte Massaro (1973) 1 QB 433).

For his part Murphy J, relevantly commented (at 108):- "... A trend has developed in New South Wales in which conspiracy, fraud, and various corporate charges become delayed because of committal proceedings which go on for months or years. These are often interrupted with excursions into the Supreme Court for rulings on points of law or procedure. This not only tends to improperly frustrate prosecutions, but also can result in embarrassment and oppression to defendants. While I do not criticise the magistrates who unfortunately have to preside over them, such committal proceedings have become a disgrace to the administration of criminal justice in New South Wales."

This was, of course, the very type of factor which has catalysed more modern approaches to the concept of committal proceedings.

At the end of the day Barton stands as authority for the proposition that an accused person does not receive a fair trial according to law if that person is, by virtue of the filing of an ex officio indictment, denied a committal hearing provided for as a normal process of the criminal law. I do not take the ratio decidendi of that case to extend beyond such a proposition. The dicta of the majority must be read in that light and as illustrative of the basis for that conclusion.

As emerges from the discussion in Barton the committal process is of relatively recent genesis and is, in fact, a creature of statute.

In the United Kingdom the earlier grand jury system was not abolished until 1933, although, for example, a statutory committal procedure had developed in South Australia by 1849. By way of contrast, a useful history of legislative provisions in New South Wales is to be found in the judgment of Dawson J in Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 at 12-14.

Moreover, the precise statutory provisions applicable from jurisdiction to jurisdiction have by no means been entirely in pari materia. This is particularly so in relation to the statutory tests to be satisfied before an accused person is to be committed for trial.

It is, for example, to be observed that, at the time of the decision in Barton, section 41(6) of the Justices Act (NSW) directed the examining justices to commit an accused if not of the opinion that, having regard to all of the evidence before them, "a jury would not be likely to convict the defendant of an indictable offence".

At the same time the relevant South Australian statute (which, in that respect, drew its genesis from section 15 of the State Ordinance No 15 of

required a magistrate to consider whether the evidence was sufficient to put the defendant upon his trial for any indictable offence - a provision which was consistently held to require the magistrate to determine whether, in light of all evidence before the court, a prima facie case had been made out against the accused person by witnesses entitled to a reasonable degree of credit - it being no function of the magistrate to decide questions of conflicting testimony, other than to assess whether any evidence led on behalf of an accused was so credible and convincing as to patently overwhelm what otherwise might have been a prima facie prosecution case.

In South Australia that test has been altered by subsection (1) of section 107 of the SPA, which spells out the concepts that a committal is to be ordered if the Crown evidence, taken at face value, would prove every element of the offence and that, in general, detailed issues of admissibility are to be reserved to the trial judge.

As was demonstrated in Goldsmith such provisions largely negate the relevance of "fishing expeditions" designed to probe issues of credibility, or which are merely designed to extract information possibly of value to the defence.

I do not perceive anything in Barton which establishes the proposition that there is a common law or constitutional right to a committal process of a particular type. Indeed that could not be possible, as I have pointed out. Barton arose from the statutory criminal process which existed in New South Wales, as the norm in that State, at the relevant time. The ultimate decision necessarily focused on the entitlement of an accused to what was the normal contemporary process under the statute; and the unfairness which flowed from a failure to adopt such a course.

It follows that the situation in this case falls to be viewed against the norm established by section 107 and the reasonableness and fairness of the ancillary measures designed by the rules to give effect to it. Approaching it in such a manner I do not see any basis for impugning either the statutory scheme or the rules of court designed to give effect to it.

Although reference was made to both Dietrich and Jago in support of the defence argument, it seems to me that they do not advance the contentions of the accused beyond reinforcing the fundamental proposition that, under Australian law, an accused person is entitled to a fair trial. Such a concept begs the question as to procedural aspects established as the creatures of State statutes, which are not entirely uniform and have varied over time. This is particularly so when the trial of criminal offences under federal enactments are, by statute, to be disposed of in State Courts in accordance with State procedures, save to the extent that specific provisions of the Commonwealth legislation are inconsistent with and expressly modify those procedures.

It is to be remembered that section 68 of the Judiciary Act, 1903 (Cth), in terms, enacts that the laws of a State respecting the procedure for the examination of persons charged with offences against federal legislation and their commitment for trial on indictment are to apply in situations in which a court is exercising jurisdiction conferred by the section. Subsection (2) of that section stipulates that:- "(2) 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."

That section does not, relevantly, contain any specific provision bearing upon the issue now under consideration.

However, quite apart from section 68, it is not without significance that the High Court has rendered it clear that, subject to certain caveats not here relevant, the concept of Chapter III is that federal jurisdiction is vested in State Courts as they are constituted and on the basis of their existing structures and procedures. (Le Mesurier v Conner [1929] HCA 41; (1929) 42 CLR 481, Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84.)

In Le Mesurier v Connor at 495-496, it was said, in the joint judgment of Knox CJ and Rich and Dixon JJ:- "'The Constitution, by chapter III., draws the clearest distinction between Federal Courts and State Courts, and while enabling the Commonwealth Parliament to utilize the judicial services of State Courts recognizes in the most pronounced and unequivocal way that they remain "State Courts"' (per Isaacs J in R v Murray and Cormie, and see per Higgins J and Gavan Duffy J and Rich J). The Parliament may create Federal Courts, and over them and their organization it has ample power. But the Courts of a State are the judicial organs of another Government. They are created by State law; their existence depends upon State law; that law, primarily at least, determines the constitution of the Court itself, and the organization through which its powers and jurisdictions are exercised. When a Court has been erected, its jurisdiction, whether in respect of place, person or subject matter, may be enlarged or restricted. The extent of the jurisdiction of a State Court would naturally be determined by State law; ... "

Their Honours went on to say (at 496):- "It is no less certain that these general powers cannot be interpreted as authorizing legislation dealing with the organization of State Courts. The power conferred by sec.77

(III.) is expressed in terms which confine it to making laws investing State Courts with Federal jurisdiction. Like all

other grants of legislative power this carries with it whatever is necessary to give effect to the power itself. But the power is to confer additional judicial authority upon a Court fully established by or under another legislature. Such a power is exercised and its purpose is achieved when the Parliament has chosen an existing Court and has bestowed upon it part of the judicial power belonging to the Commonwealth. To affect or alter the constitution of the Court itself or of the organization through which its jurisdiction and powers are exercised is to go outside the limits of the power conferred and to seek to achieve a further object, namely, the regulation or establishment of the instrument or organ of Government in which judicial power is invested, an object for which the Constitution provides another means, the creation of Federal Courts."

It is a logical extension of that basis of conceptual reasoning to conclude that a vesting of federal jurisdiction in State courts implies that such vesting not only operates so as to take the structure of the State court as it finds it, but also the statutory procedures relevant to its modus operandi - at least save to the extent that Commonwealth legislation explicitly and constitutionally modifies those procedures.

The reasoning in Barton, as I have demonstrated, is in no sense in conflict with that concept. It essentially proceeds upon the footing that the 'norms' erected by the applicable legislation in New South Wales had, unjustifiably, been departed from - with obvious potential prejudice to the accused.

The short answer to the primary argument advanced by Mr Faris QC, therefore, is that both section 68 and the Chapter III of The Constitution operate so as to accept the current provisions of the SPA, as they are applicable to the instant proceedings, and that the fairness demanded by Chapter III of The Constitution falls to be tested against the proper application of the 'norm' thereby created to the situation of the present accused.

In such circumstances there is simply no scope for reading down the statutory provisions, as he would have me do.

As I understand his argument it is to the effect that, regardless of the legislative provisions of a State normally applicable to committal proceedings, there is an overriding inferred "Commonwealth common law" entitlement, recognised by Barton, to the conduct of a full committal proceeding, the incidents of which are that the accused is:- - entitled to have knowledge of what all Crown witnesses are prepared to say on oath and, for that purpose, to have an untrammelled opportunity of cross examining them. - to be at liberty to call evidence in rebuttal of the prosecution case and, at the end of the day, to argue that no prima facie case has been made out, or that, having regard, inter alia, to issues of witness credibility, the evidence is of insufficient weight to put the accused on trial.

There are, in my opinion, obvious fallacies inherent in such an argument.

The first is that the dicta in Barton, however generally expressed they may appear to have been, were, as I have reiterated, the product of the legislative environment there under consideration. They did not and could not have focused upon the general Australian scene, with its divergent local statutory situations, save to the extent that the statements made were fairly relevant, as expressions of principle, to a specific statutory environment. Moreover, as I have already demonstrated, what was there in issue was a failure to permit the normal regime to apply at all, with the obvious prejudice to an accused which necessarily flowed from a denial of access to that regime and the incidents attendant upon it.

Mr Faris QC went so far as to contend that, so far reaching and general were the dicta in Barton, that they had the effect of erecting what he described as a "Commonwealth Common Law" committal entitlement, which operated so as to modify any conflicting restrictions imposed by State legislation.

He argued:- "... Now we say here that putting it in general terms the new provision of the state legislation deprives the defendant of a pre-existing committal as contemplated by Barton and the High Court and is contemplated in federal law as being a pre-cursor to a fair trial. Insofar as it does conflict, those particular provisions, in Commonwealth cases are severed or are inoperative in Commonwealth cases. It would simply be, for example, in a Commonwealth case you would be entitled, we say, to have full cross-examination. In a State case you have limited statutory cross-examination. The fact that you have got a magistrate, you have got to file documents, there is a test to all these sorts of things. These are not swept away. The procedures still exist and the procedures still run."

When pressed as to the extent of the asserted "Commonwealth Common Law" committal entitlements and requirements, Mr Faris QC responded to this effect:- "... We say you cannot exhaustively set out the attributes of, as it were, a fair committal. But this is a problem which courts face constantly, and it is our argument that in the end it is going to be a matter for the Commonwealth to determine and the courts, and we say 'We regard this as being an essential ingredient of a fair committal and that as not being an essential ingredient', and develop, as we now must, what is a fair trial.

I mean, it may be we go so far as, in a trial of a common law matter, if I ask your Honour for an adjournment and your Honour doesn't grant the adjournment, maybe that is a breach of a constitutional right to a fair trial. There's no exhaustiveness. One cannot say yes it is, or no it isn't. It is going to depend upon development of the common law. Because we don't have a written Bill of Rights like America

where you can list them and say 'Well, did it fall within that category?'. It is simply these are rights under the Constitution, and it is going to be for the court to determine it or to apply the principle of fairness in each particular circumstance."

Such contentions amply illustrate what seems to me the inherent illogic of the accused's line of argument. It is, in my view, utterly inconsistent with the manifest scheme of section 68 of the Judiciary Act and the fact that the committal process is, and always has been, a pure creature of statute.

I have pointed out that section 68, in unequivocal terms, expressly provides that the procedures for examination and commitment for trial are to be those erected by the relevant State law, save only to the extent of any specific contrary provisions of that section itself. So it is that section 68 clearly recognises the fact that the detailed statutory provisions relation to preliminary examinations may vary from State to State and from time to time. In such a context there is simply no scope for asserting that these are, in some fashion, to be read down in light of (and modified by) some ill defined and developing common law rights said to be applicable by virtue of an implied constitutional guarantee.

An acceptance of the accused's argument would, in the long term, have the potential of virtually negating the conceptual statutory scheme evidenced by section 68 itself and the type of reasoning expressed in Le Mesurier v Connor and Harris v Caladine).

Having regard to those considerations I am of opinion that the primary argument advanced by Mr Faris QC must be rejected.

It therefore becomes necessary to examine the secondary argument on behalf of the accused, which seeks to impugn the conduct of the committing magistrate.

As to this it must be stressed, at the outset, that, whilst, in his judgment in Goldsmith, King CJ indicated a need for due recognition of the new concepts erected by sections 106-107 of the SPA and (by inference) the need for firm implementation of the caseflow management principles enshrined in the Rules of the Magistrates Court, he nevertheless recognised a paramount need to ensure fairness to an accused person, in the manner referred to in his dictum already recited in these reasons.

Whilst I sympathise with the obvious desire of the learned magistrate to ensure the timely processing of these proceedings, I consider that he did not adequately take into account the particular problems which beset the accused in this case, in relation to his proper legal representation in the context of what is a very serious charge against him. His approach necessarily operated to deny the accused the right to file a considered and properly developed Rule 20 application. Had such an application been made it may well have been proper to accede to it, at least to some extent, having regard to the guidelines enunciated by King CJ.

It is to be recalled that the accused was in a difficult practical situation, not of his own making. It was necessary for him to procure separate legal representation due to the conflict of interest which had arisen; and his available assets had been "frozen" by Crown action. Timely steps were being taken to resolve such difficulties and the Crown actually supported a modest further adjournment for the purpose.

Without in any way seeking to weaken the importance of the caseflow management rules, it must be remembered that these are not intended to be applied in a totally inflexible manner. They demand the exercise of a judicial discretion applied to individual factual circumstances. The proper exercise of that discretion in the instant case demanded due recognition of the difficulty in which the accused found himself, as well as the potential injustice to which the denial of the adjournment sought necessarily gave rise. Whilst this Court ought to be slow to interfere with the discretionary refusal of an adjournment, I am, nevertheless, driven to the conclusion that what was done in this case was inappropriate in the circumstances.

That being so two differing possible approaches arise for consideration. One option would be to stay the trial of the accused until a proper committal process has been completed. A second option is that identified in R v Sandford (1994) 33 NSWLR 172 - that is to say, to permit the conduct, within proper limits, of a so-called "Basha" type inquiry as a pre empanelment exercise. (See R v Basha (1989) 39 A Crim R 337.) In Sandford Hunt CJ at CL said (at 180-181:- "... What I suggested there (ie in Basha) was that an accused may be permitted in the absence of the jury to cross-examine a witness who had not been called at the committal hearing in order to overcome any prejudice from that fact. However, it is not a legitimate purpose of committal proceedings to try out risky questions so that they will not be repeated at the trial if the answers prove to be embarrassing or unproductive: Moss v Brown (1979) 1 NSWLR 114 at 125; Barron v Attorney-General for New South Wales (1987) 10 NSWLR 215 at 233. The loss of an opportunity to do so at the committal therefore does not entitle an accused to try out the questions at the trial in the absence of the jury so as to avoid the embarrassment of unsuccessfully raising an issue in the presence of the jury. Those who seek to take advantage of what I suggested in R v Basha often appear to ignore my reference there (at 340) to the same propositions.

I should add that I acknowledge the criticism expressed by Sully J in R v Cheung Wai Man (Sully J, 11 September 1990, unreported) at 5 concerning the use by me of the term 'voir dire' for what has apparently now become known as a 'Basha' inquiry. It is indeed a technical misuse of that term (De Gioia v Darling Island Stevedoring and Lighterage Co Ltd [1941] NSWStRp 53; (1941) 42 SR(NSW) 1 at 8; [1941] NSWStRp 53; 59 WN(NSW) 22 at 25), but it is a convenient one. (I notice that the term 'voir dire' was also used by this Court to describe this procedure in R v Palmer (1992) 64 A Crim R 1 at 11.) What I intended to refer to was simply an examination of the witness in the absence of the jury.

I maintain my belief in the obvious value of such a procedure - by whatever name it may be called - provided (and these are important provisos) that the accused has demonstrated - in advance - the particular issue which he intends to pursue, that the judge is satisfied that there is at least a serious risk of an unfair trial if the accused is not given the opportunity to do what otherwise would have been done at the committal proceedings, that the procedure is not used inappropriately in order to try out risky questions which may otherwise prove to be embarrassing in the presence of the jury, and provided also that such an examination is not permitted to interrupt the trial itself significantly: cf R v Courtney-Smith (No 2) (1990) 48 A Crim R 49 at 59-60.

The onus lies upon the accused in such cases to demonstrate that the disadvantage or prejudice which he would otherwise suffer during the course of the trial is in a relevant sense unacceptable, to the extent that the trial would be unfair: Barron v Attorney-General for New South Wales (at 219, 233); R v Basha (at 338). If a decision is made that it is appropriate to follow such a procedure, it is something which should usually be followed before the jury is empanelled or at some other time which does not interrupt the trial."

Whilst it is beyond question that, technically, a trial judge who entertains an application for a Basha inquiry is not subject to the express limitations of subsections (2) and (3) of section 106 of the SPA, nevertheless, having regard to the obvious intention of the legislature and the onus borne by an applicant (as adverted to by Hunt CJ at CL), it would be inappropriate simply to permit a wide ranging voire dire type inquiry for the asking.

Mr Faris QC submitted that, if I arrived at the conclusion that the exercise of discretion by the learned magistrate had miscarried, the proper course would be to grant a stay of the trial in this matter until fresh committal proceedings had been conducted. He contended that, such were the outstanding issues as to discovery and such was the potential scope of voire dire inquiry, it would be impractical to deal with these aspects as portion of the trial process - they were best dealt with as part and parcel of a fresh committal. Moreover, he submitted that the accused should not be denied what would have been his right to argue that the state of the evidence did not justify committal.

As at present advised I am unable to accept this proposal. Paradoxically it seems to me that the accused would, in any event, be more circumscribed in seeking to resolve the types of problem identified within the four corners of a committal process, than as part of the preliminary stages of the trial itself. Moreover, it appears obvious from a series of issues already identified in a memorandum tendered to me by Mr Faris QC that a significant number of matters will, ultimately, have to be resolved and ruled upon by the trial judge, rather than a committing magistrate.

It is common ground that significant discovery has already, voluntarily, been made by the prosecution. Those remaining areas of contention, which involve questions of confidentiality and/or privilege, really need to be determined by the trial judge. Furthermore, the nature and extent of any possible cross examination of prosecution witnesses to be permitted remains to be decided. Whether any such cross examination is appropriate and the scope and length of it will depend very much on the detailed justification which can be advanced on behalf of the accused. In all fairness to both the prosecution and the defence and having regard to the desirability of expeditious despatch of these proceedings, there is much to be said for the immediate disposal of all of these issues in the more flexible setting of the trial itself. The various preliminary matters which will, on any view, have to be addressed by the trial judge will occupy a not insignificant time before the accused can formally be arraigned before a jury.

As to the contention that the accused ought not to lose the opportunity of arguing before a magistrate that committal should not be ordered, there appear to me to be two obvious responses.

Insofar as the accused might desire to contend that the proposed accomplice evidence ought to be considered unreliable this, in fact, seeks to raise credibility issues which, by virtue of subsection (1) of section 107 of the SPA, are excluded from the province of consideration of the magistrate presiding at the preliminary examination. Absent such a consideration, the declarations, on the face of them, constitute a very strong basis for committal.

Secondly, as Mr Tilmouth QC pointed out, it still remains open to the accused, at the conclusion of any Basha inquiry or other voire dire activity, if the state of the evidence warrants such a course, to make a submission to the trial judge of the nature of that adverted to in The Queen v Hill and Ors (at first instance Vincent J, 13 December 1993, unreported, on appeal, Victorian Court of Criminal Appeal, 25 March 1994, unreported) - to the effect that, on the state of the evidence, the prosecution case is, as a matter of law, incapable of success and should therefore be stayed eg in that case, because, for example, it necessarily rested upon the drawing of an inference which, it was said, the evidence was patently incapable of supporting beyond reasonable doubt.

Such an application would, in form, be for a stay on the basis that the proceedings were an abuse of process, because it was patently inevitable that they would be foredoomed to fail (Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 at 393). An alternative formulation proferred by one member of the Court of Criminal Appeal in The Queen v Hill and Ors was that a stay may be granted where an accused is able to demonstrate that it is clear beyond argument that the Crown will be unable to make out a case to answer, having regard to the evidence on which it seeks to rely.

It follows that the accused is by no means prejudiced by a failure to require a further committal process to be undertaken.

On balance then, I see no merit in requiring a fresh committal process to take place, which will inevitably result in significant further delay and little, if any, benefit to the accused - by way of contrast with what can be achieved in pre empanelment procedures.

I therefore decline to grant a stay in this matter, but will proceed, pursuant to section 285a of the Criminal Law Consolidation Act, to deal with such questions as require to be addressed before the jury is empanelled, including any application for a Basha type inquiry, on the basis outlined in Sandford.

For that purpose I will, as previously advised to counsel, sit at 10.00 am on Wednesday, 9 November 1994, initially to deal with any necessary aspects related to subpoenas proposed to be issued on behalf of the accused and, thereafter, to consider section 285a questions in an orderly fashion. The jury trial date fixed for Tuesday, 8 November 1994 will be vacated pending disposal of all preliminary matters.

Proceeds of Crime Act 1984

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Proceeds of Crime Act 1984

Summary Procedure Act 1992

Summary Procedure Act 1921

[Constitution](/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/) Act Chapter III, s80. Le Mesurier v Connor

At a glance

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Decision date

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Source

Judgment (160 paragraphs)

DIRECTOR OF PUBLIC PROSECUTIONS (CTH) v. PHILLIP ANDREW BAYLY No. SCCRM 94/406 Judgment No. 4842 Number of pages - 28 Criminal law and procedure - jurisdiction, practice and procedure (1994) 75 A Crim R 549 [1994] SASC 4842 (4 November 1994)

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Legislation Cited (6)

Cases Cited (14)