Lamb, Peter v Moss, Thomas Ervin & Ors [1983] FCA 264

Federal Court of Australia|1983-10-12|Before: Fitzgerald JJ, John J

ADMINISTRATIVE LAW - Administrative Decisions (Judicial Review) Act - applicant seeking to have reviewed "decisions or conduct" of a stipendiary magistrate in committal proceedings - whether the magistrate made a "decision"

or "engaged in conduct" for the purpose of a "decision" - whether decisions of an "administrative character" - whether decisions or conduct "under an enactment" - the Court's discretion under the Administrative Decisions (Judicial Review) Act.

Judiciary Act 1903, ss. 68, 69, 71 Crimes Act 1914, ss. 86, 86E

Administrative Decisions (Judicial Review) Act, ss. 3, 5, 6, 7, 8, 9 to li, 12, 13, 15, 16, 18

PETER LAMB (appellant) v. THOMAS ERVIN MOSS (first respondent) and BRUCE RAYMOND BROWN (second respondent}

BOWEN C.J., SHEPPARD AND FITZGERALD JJ. SYDNEY 12 OCTOBER 1983 °

NEW SOUTH WALES DISTRICT REGISTRY ) N.S.W. G63 of 1983 GENERAL DIVISION ) BETWEEN: PETER LAMB Appellant AND:

JUDGES MAKING ORDER: Bowen C.J., Sheppard and Fitzgerald JJ.

NEW SOUTH WALES DISTRICT REGISTRY ) N.S.W. G63 of 1983 GENERAL DIVISION ) BETWEEN : PETER LAMB Appellant AND:

t THE COURT: This is an appeal from a decision of St. John J. dismissing an objection to the competency of an application to the Court under the Administrative Decisions (Judicial Review)

On 31 March 1978, the first respondent, Thomas Ervin Moss, a medical practitioner, was charged on the information of the appellant, Peter Lamb, with an offence under para 86(1)(e) of the Crimes Act 1914 ("the Crimes Act"). The information alleged that, between 1 July 1972 and 31 March 1978 at Sydney in the State of New South Wales, Dr Moss conspired with certain named persons and divers unknown persons to defraud the Commonwealth of

Australia. Committal proceedings were subsequently commenced

before the s3écond respondent. Bruce Raymond Brown, a New South Wales stipendiary magistrate appointed under the Justices Act

On 29 November 1982, after all the evidence for the prosecution had been taken in an extraordinarily lenathy hearing, the stipendiary magistrate, who has appeared in these proceedings only to abide the order of the Court, found that a prima facie case had been made out against a number of defendants, including Dr Moss, in respect of a different offence against s.86 of the Crimes Act. It is not in dispute that, in an appropriate case, it would be open to a stipendiary magistrate to form and proceed upon such a conclusion notwithstanding the variation from the original offence charaded. The stipendiary magistrate did not proceed further on 29 November but adjourned the committal

On 2 December 1982, a number of applications was made to the stipendiary magistrate by Counsel on behalf of Dr Moss. One application was for a direction, "that certain witnesses should be recalled for further cross-examination in the light of the fact that Your Worship has found no prima facie case in respect of the charge as laid in the original information". Another

application was for a stay of the committal proceedings as an

abuse of process. The stipendiary magistrate refused those applications and adjourned the committal proceedings to 20

December 1982. On that date the stipendiary magistrate indicated

that he did not propose to order that Dr Moss be discharged at

that stage of the committal proceedings but intended to proceed

under sub-s. 41(4) of the Justices Act, which is set out below.

On the same day, 20 December 1982, an application was made in this Court to review the decisions or conduct of the stipendiary magistrate. An objection to competency was filed on 30 December 1982. The objection was arqued before St. John 7. who dismissed it with costs on 17 March 1983. The present appeal

It is not in contest that this Court is not concerned with s.86E of the Crimes Act, which was repealed during 1982 by Act No. 67 of 1982. The immediately relevant statutory provisions, apart from para 86(1)(e) of the Crimes Act which makes a conspiracy to defraud the Commonwealth an indictable

offence, are to be found in the Judiciary Act 1903 ("the Judiciary Act") and s.41 of the Justices Act. The latter is. of

course, an Act of the New South Wales Parliament, not the

Section 68, which is contained in Part X of the Judiciary Act "Criminal Jurisdiction - Division 1 - Application

"68(1) The laws of each State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for -

(db) their examination and commitment for trial 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 committed within that State or Territory, or whose trial for offences committed elsewhere may lawfully be held therein.

(2) The several Courts of a State or Territory exercising jurisdiction with respect to -

(b) the examination and commitment for ' trial on indictment; or

of offenders or persons charged with offences aqainst 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 have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth committed within the State or Territory, or who may lawfully be tried within the State or

Territory for offences committed elsewhere. (3) Provided that such jurisdiction

shall not be judicially exercised with respect to the summary conviction or examination and commitment for trial of any person except by a Stipendiary or Police or Special Magistrate, or some Magistrate of the State or Territory who is specially authorized by the

Governor-General to exercise such jurisdiction. (4) The several Courts of a State or

Territory exercising the jurisdiction conferred upon them by this section

shall, upon application being made in that behalf, have power to order, upon such terms as they think fit, that any information laid before them in respect of an offence against the laws of the Commonwealth shall be amended so as to remove any defect either in form or substance contained in that information.

(7) The procedure referred to in sub-section (1) and the jurisdiction referred to in sub-section (2) shall be deemed to include procedure and jurisdiction in accordance with provisions of a law of a State or Territory under which a person who, in proceedings before a court of summary jurisdiction, pleads guilty to a charge for which he could be prosecuted on indictment may be committed to a court having jurisdiction to try offences on indictment to be sentenced or otherwise dealt with without being tried in that court, and the reference in sub-sections (1) and (2) to "any such trial or conviction" shall be read as including any conviction or sentencing in accordance with any such provisions.

(8) Except as otherwise specifically provided by an Act passed after the commencement of this sub-section, a person may be dealt with in accordance with provisions of the kind referred to in sub-section (7) notwithstanding that, apart from this section, the offence would be required to be prosecuted on indictment, or would be required to be prosecuted either summarily or on indictment.

(9) Where a law of a State or Territory of the kind referred to in sub-section (7) refers to indictable offences, that reference shall, for the purposes of the application of the provisions of the law in accordance with that sub-section, be

read as including a reference to an offence against a law of the Commonwealth

(10) Where, in accordance with a procedure of the kind referred to in sub-section (7), a person is to be

sentenced by a court having jurisdiction to try offences on indictment, that person shall, for the purpose of ascertaining the sentence that may be

imposed, be deemed to have been prosecuted and convicted on indictment in that court.

(11) Nothing in this section excludes or limits any power of arrest conferred by, or any jurisdiction vested or conferred by, any other law, including an Act

passed before the commencement of this sub-section."

Sections 69 and 71, which are contained in Division 2 of Part X of the Judiciary Act - "Indictable Offences", provide so

"69(1) Indictable offences against the laws of the Commonwealth shall be prosecuted by indictment in the name of the Attorney-General of the Commonwealth or of such other person

(2) Any such appointment shall be bv commission in the Queen's name, and may extend to the whole Commonwealth or to any State or part of the Commonwealth.

When any person is under commitment upon a charge of an indictable offence against the laws of the Commonwealth, the Attorney~General or such other person as the Governor-General appoints in that behalf may decline to proceed further in the prosecution, and may, if the person is in custody, by warrant under his hand direct the discharge of the person from custody, and he shall be discharged accordingly."

Sections 21, 41, 41A and 42 of the Justices Act provide,

"21. An information may be laid before a dustice in any case where any person has committed or is suspected to have committed any treason or other indictable offence -

(b) on the high seas, or in any creek, harbour, or other place in which the Admiralty of England have or claim to have jurisdiction;

"41(1) Whenever a person charged with an offence upon an information under section 21 appears or is brought before a Justice or Justices voluntarily upon summons or upon apprehension under or without warrant or in custody for such or any other offence, the Justice or Justices shall take the evidence for the prosecution in manner hereinbefore provided.

(1B) (a) Subject to this section, the evidence for the prosecution shall be taken in the presence of the defendant.

(2) After all the evidence for the prosecution has been taken the Justice or Justices shall -

(a) if he or they is or are of opinion that such evidence is not sufficient to warrant the defendant being put

offence, forthwith order the defendant, if in custody to be discharged as to the information then under inquiry;

if he or they is or are of opinion that a prima facie case has been made out, proceed as hereinafter provided.

prosecution has, in the opinion of the Justice or Justices, established a prima facie case, he shall -

say to the defendant: "Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you desire to do so, but whatever you say will be recorded, and may be given against you in evidence at your trial"; and

before the defendant makes any statement in answer, inform the defendant and give him clearly to understand that he has nothing to hope from any promise or favour and nothing to fear from any threat which may have been holden out to him to induce him to make any admission or confession of his guilt, but that whatever he then says may be given in evidence against him upon his trial notwithstanding such promise or threat.

shall be recorded by one of the means referred to in section 36(4).

writing shail be read over to the defendant and shall be siqned by the

(a) if taken down in writing, may be given in evidence at the trial of

unless it be proved that the Justice or Justices by whom it purports to be signed did not in fact sign it;

(Db) af in the form of a transcript, certified in the prescribed manner, of a record (other than in writing) made pursuant to paragraph (ii), may be given in evidence at the trial of the defendant if it is proved on oath that the record so made isa true record of the statement made by the defendant and that the transcript is a correct transcript of the record so made.

(v) Nothing herein shall prevent the prosecutor in any case from giving in evidence any admission or confession or other statement of the defendant, made at

any time, which by law would be admissible as evidence against hin.

(5)(i) After the defendant has made such statement, or if he makes no such statement, the Justice or Justices shail ask him if he desires to give evidence himself or to call any witness on his behalf.

(ii) Any evidence then given by or on behalf of the defendant shall be taken by the Justice or Justices in manner hereinbefore provided in respect of evidence for the prosecution.

prosecution and for the defence has been taken the Justice or Justices shali -

(a) if he or they is or are of opinion that on such evidence the defendant ought not to be put upon his trial for an indictable offence, forthwith order the defendant, if in custody, to be discharged as to the information then under inquiry,

(b) if he or they is or are of opinion that the evidence 1s sufficient to warrant the defendant being put on

his trial for an indictable offence, or if the evidence raises a strong er probable presumption of the guilt of the accused, commit the defendant for trial.

41A.(1) The Justice or Justices making any order discharging a defendant as to the information then under inquiry may in and by such order adjudge that the informant shall pay to the clerk of the court to be by him paid to the defendant such costs as to such Justice or Justices seem just and reasonable.

(2) The amount so allowed for costs shall in all cases be specified in such order.

(3) The provisions of sections 82, 83 and 84 relating to orders for the payment of costs shall, mutatis mutandis, apply to and in respect of orders for the payment of costs made pursuant to this section.

42.(1) Where a person 18 committed for trial, the committing Justice or Justices shall, subject to the Bail Act, 1978, commit him to prison, there, subject to that Act, to be safely kept until the sittings of the Court before which he is to be tried or until he is delivered by due course of law."

The "decisions or conduct" of the stipendiary magistrate

The applicant not be discharged as to an information alleqing an offence under Section 86(1)(e) of the Crimes Act, 1914.

A prima facie case had been made out against the applicant in respect of an offence under Section 86(1)(e) of the Crimes Act 1914.

The first respondent proceed to deal with the applicant pursuant to Section 41(4) of the Justices Act, 1902 (NSW) in respect of an offence under Section 86(1)(e) of the Crimes Act, 1914.

An application on behalf of the applicant that certain witnesses be recalled for

further cross-examination by Counsel for the applicant be refused.

An application on behalf of the applicant for a stay of committal proceedings against the applicant in respect of an

offence under Section 986(1)(e) of the Crimes Act, 1914 be refused.

There is some confusion underlying the above description of the

"decisions or conduct" which is reflected by a lack of precision

and detail in the grounds which are stated in the Application.

The basis for paragraph 5, supra, was an assertion that 1t would be an abuse of process for the stipendiary magistrate to

commit Dr Moss for trial unless certain undertakings were given

concerning evidence which would be called for the prosecution at the trial. Counsel for Dr Moss relied upon the decision of Rath

J. an Miller v. Ryan [1980] 1 N.S.W.L.R. 93 (see also R. v.

Canterbury and St. Auqustine's Justices: ex parte Drake (The Times, 19 March 1983)). We are not concerned whether a

magistrate hearing committal proceedings may decline to continue with those proceedings on the qround that they are an abuse of

process. What is here alleged to involve abuse 1s related not to the conduct of the committal proceedings but at most involves the

power of the trial court to ensure fairness if necessary by a

'stay or dismissal at the trial: cf Barton v. The Queen (1980) 147 C.L.R. 75. In any event, the committal proceedings have not yet progressed to the point at which the magistrate 1s required to decide whether Dr Moss is to be committed for trial. The stay application, on the basis on which it was made, was plainly premature at the stage at which the committal proceedings had

arrived when the application for review was made to this Court.

Paragraph 5 aside, the complaints sought to be raised by Dr Moss, broadly stated, are that the prosecution evidence could not sustain the finding by the magistrate of a prima facie case or, if it could, that the conclusion was erroneous because the magistrate misdirected himself in the approach which he adopted. Paragraph 4, supra, although expressed to raise a separate matter for review, is really directed to raising an additional complaint in respect of the magistrate's opinion that a prima facle case had been established by the prosecution evidence and that the committal proceedings should therefore continue. Broadly, the contention for Dr Moss to which paragraph 4 is direcected is that, if a charge is varied, an accused is entitled as of right to further cross-examine witnesses in respect of the reformulated charge before an opinion is formed by the magistrate on the prosecution evidence or, alternatively, that such a right of

further cross-examination was necessary to avoid injustice in the

The magistrate's opinion that a prima facie case had been established is the subject of pararaph 2 of the "decisions

or conduct" sought to be reviewed. Paragraphs 1 and 3 relate to

consequences which, by the Justices Act, follow from the

formation of such an opinion. It is convenient to deal with the objection to competency by reference to such matters collectively, reflected as they are by the stipendiary magistrate's determination on 20 December 1982 to proceed with

the committal inquiry pursuant to gsub-s. 41(4) of the Justices

Section 8 of the Act gives the Court jurisdiction to hear and determine applications made to it under that Act. The right to apply for an order of review under the Act 1s given by sub-s. 5(1) to a "person who is aagrieved by a decision to which this Act applies", by sub-s. 6(1) to a person who is aqgrieved by "conduct" in respect of which another person "has engaqed, is engaged, or proposes to enaage ... for the purpose of making a decision to which this Act applies", and by s.7 to a person who is aqgrieved by another person's failure to make a decision to which the Act applies. By sub-s. 3(1), unless the contrary intention appears, a refusal to make a decision constitutes a

Sub-section 3(1) also contains other definitions. Unless the contrary intention appears, "'decision to which this Act applies' means a decision of an administrative character made, proposed to be made, or required to be made, as the case

may be, whether in the exercise of a discretion or not, under an

enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in

Schedule 1". For present purposes, "enactment" means an Act of

the Conmonwealth Parliament or part of such an Act.

Other sub-sections of s.3 elaborate upon both what constitutes a "decision" and what constitutes ""conduct" for

material purposes. It is sufficient, in the present case, to set

forth sub-ss. 3(2), (3), (4) and (5) which respectively provide:

(a) making, suspending, revoking or refusing to make an order, award or determination;

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval. consent or permission;

(f) retaining, or refusing to deliver up, an article; or

(q) doing or refusing to do any other act or thing,

and a reference to a failure to make a decision shall be construed accordingly.

(3) Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation

shall itself be deemed, for the purposes of this Act, to be the making of a decision.

(a) a reference to a person aggrieved by a decision includes a reference -

(i) to a person whose interests are adversely affected by the decision; or

(iL) in the case of a decision bv way of the making of a report or recommendation - to a person whose interests would be adversely affected if a decision were, or were not, made in accordance with the report or recommendaion: and

(b) a reference to a person aqgrieved by conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision or by a failure to make a decision includes a reference toa person whose interests are or would be adversely affected by the conduct or failure.

A reference in this Act to conduct engaged infor the purpose of making a decision aincludes a reference to the

the making of a decision, including the taking of evidence or the holding of an

The primary contention for Dr Moss was that the magistrate's opinion that a prima facie case had been established and his determination to proceed with the committal proceedings constituted a decision of an administrative character made under

the Judiciary Act. His alternative argument was that the

magistrate had done an "act or thing preparatory to the making of a decision" of an administrative character under the Judiciary Act, and thus had "engaged 1n conduct for the purpose of making" such a decision by reason of sub-s. 3(5) of the Act. On this hypothesis, according to counsel for Dr Moss, a number of different "decisions" could be pointed to. It was submitted that the maqistrate's performance in due course of his functions specified in sub-s. 41(6) of the Justices Act, would if not otherwise a decision, involve the making of a recommendation or report within sub-s. 3(3) of the Act. Alternatively, the

contention was raised that the magistrate's conduct of the committal proceedings was for the purpose of a decision by the Attorney-General (or his delecaate - sub-s. 3(8)o0f the Act) under s.69 or 5.71 of the Judiciary Act. The appellant disputed each element of each of the alternative bases on which the matter was

put forward for Dr Moss. St. John J. upheld Dr Moss' primary

Committal Proceedings and Discretion under the Judicial Review Act

Before proceeding to consider the specific questions raised by the objection to competency, it seems to us desirable to notice the difficulties which have been encountered in other courts in connection with the supervision of committal proceedings and to address the question of the nature and extent

of this Court's discretion in proceedings under the Act.

Committal proceedings have long formed an element of criminal justice in Australia. In Barton v The Queen (supra) Murphy J. (147 C.L.R. at pp. 108-9) expressed doubt as : to the desirability of committal proceedings in modern times, at least in certain types of cases. He said that a trend had developed in New South Wales in which conspiracy, fraud and various corporate charges had become delayed because of committal proceedings which went on for months or years and were often interrupted by excursions into the Supreme Court for rulings on points of law or procedure and that such committal proceedings had become a disgrace to the administration of criminal justice in New South Wales. The present committal proceedings

against Dr Moss were before the Supreme Court as early as 1979:

see Moss v. Brown [1979] 1N.S.W.L.R. 114. Further, Murphy J.

in Barton v. The Queen (supra), expressed the view that the need for committal proceedings in respect of indictable offences

has influenced the trend in Australia to turn indictable offences into summary ones and to createnew offences as summary rather than indictable offences, with the consequence that fewer

The views of Murphy J. were not shared by other members

of the Court in Barton v. The Queen (supra). In the opinion of

Gibbs ACJ (As the Chief Justice then was) and Mason J., with

whom Aickin J. agreed, committal proceedings constitute an important

element in the protection which the criminal process gives to an

accused person, notwithstanding that the scope of the protection is diminished to some extent by the circumstance that the Attorney-General can file an ex officio indictment irrespective of the decision of the magistrate in the committal proceedings and indeed whether or not committal proceedings are held. Such an ex officio indictment was described as "a rare exception to the general rule" (p.99). Compare per Stephen J. at p.104. Gibbs A.C.J. and Mason J. said in their joint judgment (at p.100) that committal proceedings constituted 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. "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 the trial or at the trial." (pp. 100-101). Stephen J. (at p.105) agreed that committal proceedings were an important part of the protection ordinarily afforded to an accused in the criminal process and that the absence of committal proceedings occasions an "obvious detriment" to the accused in the loss of the opportunity of being discharged by the committing magistrate. He did not, however, accept that committal proceedings were, in all but exceptional circumstances, an essential pre-requisite to a fair trial. Nor did Wilson J.: p.117. Stephen, Murphy, and Wilson JJ. all emphasised the right of the Attorney-General to file an indictment independently of

There has been, for a considerable period, controversy in New South Wales as to whether the New South Wales Supreme Court has power to make declarations affecting committal proceedings. For example, in Connor v. Sankey £19761 2 N.S.W.L.R. 570, the majority of the New South Wales Court of Appeal, Moffitt P., and Reynolds J-A., Street C.J. dissenting, held that the Court did not have power and accordingly declined to deal with aclaim for a declaration that a magistrate was incorrect in holding that informations purportedly laid under s.86 of the Crimes Act against Mr Whitlam, who had recently ceased to be Prime Minister of Australia, and three other gentlemen who had been in his Ministry, disclosed an offence known to law. In Sankey v. Whitlam (1978) 142 C.L.R. 1, Gibbs A.C.J. held (at p.22) that the view that there was no power to

make such a declaration was incorrect, citing the judgment of

Walsh J. in Forster v. Jodedex (Aust) Pty Ltd (1972) 127 C.L.R. 421 at p.428. At p.23, in Sankey v. Whitlam, Gibbs A.C.J. said:

"There is no yeason in principle why a declaration should not be made that committal proceedings have been invalidly instituted or

wrongly continued aqainst the person seeking the declaration."

Notwithstanding these comments, it seems that the controversy in New South Wales is not at an end. For example, in Moss v. Brown,

supra, the New South Wales Court of Appeal said (at p.132) that

the jurisdictional questions concerning its power to deal with

such applications "would require review of a number of decisions of this Court in the light of the judgment of the High Court in Sankey v. Whitlam ...". See also Coles v. Wood £19811 1 N.S.W.L.R. 723, per Moffitt P., with whom Samuels J.A. aqreed. An additional question concerning the New South Wales Supreme Court's power arises in relation to applications for declaratory relief which concern interlocutory stages of committal proceedings. In Sankey v. Whitlam, supra. Gibbs A.C.J. said (at p.25):

"The question whether the power to qrant declaratory relief extends to enable the Court to declare that particular evidence is admissible or inadmissible, or that the evidence led by an informant is sufficient to make out a prima facie case, is a much more difficult one, because it is not so clear in such cases, that the plaintiff has any 'right' even within the wider sense of that word, in respect of which he can seek relief."

That question is still unresolved so far as we are aware: see,

e.g. Perry v. Nash (1980) 32 A.L.R. 177 per McLelland J. (at p.180) and Conwell v. Tatfield £19813 1 N.S.W.L.R. 595, per

Moffitt P. (at pp 603 and 605) and per Glass J.A. (at p.605). In the same case, however, Street C.J., who presided, expressed the view that "the course of authority recoqnizes that declaratory jurisdiction extends to the determination of disputed matters

arising within committal proceedings. ..." (at p.601).

It is obviously unnecessary to pursue those questions in these proceedings. More relevant are questions concerning the manner of exercise of whatever discretion exists to grant or

refusal of a declaration is well established: see, e.g., Saimar

Holdings Pty Lta@ v. Hornsby Shire Council [1971] 1 N.S.W.L.R. 192, per Mason J.A. with whom Moffitt J.A. agreed (at p.201 and

p.203-204) and Forster v. Jododex Australia Pty Ltd, supra, at

pp. 437-438 per Gibbs J., with whom other members of the High Court, including Mason J., agreed on this point. Circumstances must exist for the making of a declaration but, subject to that requirement, the discretion to grant or refuse relief must be exercised by balancing the individual features of each particular case. Whatever be the practical effect, dismissal on a discretionary ground does not in point of law determine substantive issues so as to prevent their litigation in other appropriate proceedings: Coles v. Wood [19813 1 N.S.W.L.R. 723

per Moffitt P., with whom Samuels J.A. agreed; cf. per Hutley J.A. (p.727).

Of recent years, there has been considerable attention to these principles in relation ta attempts to obtain declarations in respect of committal proceedings, particularly in New South Wales. Various considerations have been alluded to; @.g., that not merely committal for trial but committal

proceedings themselves involve detriment to an accused; that

committal usually follows from a determination that a prima facie case is established by the prosecution evidence; the power of the magistrate to commit ona charge revealed by the evidence which is different from that alleged in the information; the tentative nature of the magistrate's determinations; the power of the Attorney-General to present an ex officio indictment or to refuse to present an indictment notwithstanding committal; and the undesirability of discontinuity, disruption or delay in the well-established procedures of the criminal law; see, Bacon v. Rose £19723 2 .N.S.W.L.R. 793, at pp.797-798; Bourke v. Hamilton £19773 1 N.S.W.L.R. 470, at pp.479-480, 482, 485, 493: Sankey v.

Whitlam, supra, pp. 22, 24, 83; and Barton v. The Queen, supra,

p.104. It is necessary to balance the interests of the accused with the interests of the Crown on behalf of the community: cf.

In Bacon v. Rose (supra), Street C.J. in Eq. (as the present Chief Justice of New South Wales then was) considered that, if proceedings had been instituted in the face of an express statutory provision, it would be appropriate to makea declaration. In Sankey v. Whitlam (supra), it was held proper to declare that offences charged were not known to the law. In

Bourke v. Hamilton (supra), Needham J. held that a declaration

should be made if it was clearly established that no examining Magistrate, properly directing himself as to the law, could conclude that a prima facie case had been established on any

"Tn any case in which a declaration can be and is sought on a question of evidence or procedure, the circumstances must be most exceptional to warrant the grant of relief. oeea court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order. Although these remarks may be no more than mere 'administrative cautions' (cf. Tbeneweka v. Eqbuna (£19641 1W.L.R. 219 at p.224) I nevertheless consider that if a judge failed to give proper weight to these matters

"In the agreed, said (at p exercise of disc interference with and with the prope

could not be said that he had properly cised his discretion."

same case, Stephen J.. with whom Aickin J. .80) that in many cases refusal of relief as an retion "may be called for so as to avoid the due and orderly administration of the law y exercise by magistrates of their functions in

relation to committal proceedings needs to show some special reason why the court should grant the relief sought in lieu of allowing

committal proceedings to pursue their nary course. ... "

In Moss v. Brown (supra), the New South Wales Court of

»-- the occasions in which this Court should, in the proper exercise of its discretion, entertain applications for orders in the nature of prerogative remedies or declarations in relation to committal proceedinds, must be extremely rare. For example, a statement of intention or a revocable decision concerning the future conduct of the inquiry, or an interim refusal to adopt some course, could

See also Perry v. Nash (supra at p.180); Conwell v. Tuckfield (supra at p.601); Atkinson v. United States of America

Goverment (supra at p.235); and compare Imperial Tobacco Ltd v.

Attorney-General (£19813 A.C. 718, at pp.741., 742, 746, 752.

It is sufficient, for immediate purposes, to observe that there 1s a considerable hbodv of authoritative judicial opinion that exceptional circumstances will qenerally be required before a superior court will consider interfering in committal proceedings, particularly at an interlocutory stage. Failure to permit criminal proceedings to follow the1r ordinary course will,

in the absence of special circumstances, constitute an error of

principle, as Gibbs C.J. pointed out in Sankey v. Whitlam, supra,

The pattern of judicial attitudes revealed by the foregoing observations can only have present materiality if a discretion exists in this Court to refuse relief in respect of an application - for review under the Act notwithstanding that the conditions precedent to the exercise of the Court's power to

Rights to make an application in respect of a decision to which the Act applies, in respect of conduct engaged in for the purpose of making such a decision, and in respect of a failure to make such a decision are conferred on persons aggrieved by ss. 5, 6, and 7 respectively. The grounds upon which an order may be sought are specified 1n those sections. The manner in which applications are to be made 1s specified in 3.11, which also deals with the time for making applications. A person interested in proceedings under the Act may apply to the Court to be made a party to the application (sub-s. 12(1)), and the Court may, in its discretion, grant such an application conditionally or unconditionally or refuse it: sub-3. 12(2). The Attorney-General may intervene: s.18. The court is given jurisdiction to hear and determine applications made to it by 3.8. With qualifications which are not immediately relevant, s.9 excludes the jurisdiction of State Courts in respect of, inter

alia. matters which may be reviewed by this Court under that Act.

There is no need in this case to consider whether the

Act exhaustively defines the Court's powers in proceedings under

that Act, or whether the Court's other powers, e.g. under the Federal Court of Australia Act, also apply: cf. Thomson

Australian Holdings Pty Ltd v. Trade Practices Commission (1981) 37 A.L.R. 66 at p.73. Attention can conveniently be confined to

At a glance

Court

Decision date

Before

Source

Judgment (489 paragraphs)

Cited By (3)