Lamb v Moss

This application has been brought onasa matter of some urgency. The application was lodged in court only yesterday and I congratulate the parties on being able to prepare for a final hearing today. Because of its urgency I propose to give my reasons immediately. I hope that in so

doing I do not do injustice to counsel's careful arguments.

This is an application for an order of review under the Administrative Decisions (Judicial Review) Act ("the Judicial Review Act"), by Mr Ian Patrick Cornelius, who has been charged with conspiracy to defraud the Commonwealth, contrary to the provisions of s.86(1)(e) of the Crimes Act 1914. He has been remanded to appear on bail at the Central

Court of Petty Sessions in Perth on 16 July 1984. One of the bail conditions. is that he enter into a personal bond in the sum of $50,000 together with a surety for the sum of $50,000. It is a further condition of the bail granted to him that he is to surrender his passport and all other travel documents in his possession to the Australian Federal Police. He was given

liberty to apply for the return of his passport should he wish

The applicant claims that the decision to admit him to bail was a decision to which the Judicial Review Act applies. The respondent conceded this to be the case and, for the purposes of the present application, I shall assume that this concession was properly made. The applicant claims that he is aggrieved by the decision of the learned magistrate admitting him to bail, in that the condition requiring him to surrender his passport will inhibit his freedom to travel overseas should he wish to do so. It was submitted that the imposition of the condition that he surrender his passport was an improper exercise of the power conferred by 3.15 of the Crimes Act 1914, in pursuance of which the learned magistrate admitted him to bail. It was further submitted that there was no evidence or

other material to justify the making of the decision. However

that submission, although formally made, was not pursued.

The applicant was first charged on 18 May 1984 and was then remanded to appear on 23 May 1984. The bail conditions

originally fixed by a magistrate other than the first repondent did not include a condition that he surrender his passport. When he appeared on 23 May, counsel for the prosecution asked the same learned magistrate to remand the applicant to 18 June 1984 and also sought that, pending the further adjournment, the terms of the applicant's bail should include a condition that he surrender his passport. The applicant's counsel, whilst consenting to the adjournment, opposed any requirement that he surrender his passport. He pointed out to the magistrate that the applicant''s alleged co-conspirator, Mr Briggs, had been granted bail on conditions which did not include any condition

It was put to the learned magistrate that it would be

unreasonable to impose on the applicant a condition that he surrender his passport when no similar condition had been imposed on Mr _ Briggs. It was further submitted on the applicant's behalf that, if he were granted bail on terms significantly different from those imposed on Mr Briggs, members of the public and his business associates would infer that there was a real risk that he might abscond if he had possession of his passport. This was put to the magistrate as

being a matter which was gravely prejudicial to the applicant.

It appears from the transcript of the proceedings before the learned magistrate that not a great deal of

attention was given to the question whether it was necessary or

desirable to impose a requirement that the applicant surrender his passport. Nor was the magistrate given much material upon which he could determine the extent of the applicant's assets and his business, social and family ties in Australia. Not unnaturally, the learned magistrate took the view that he had to consider the application for bail on its merits and without

regard to the conditions of Mr Briggs' bail. However, he did

"create a situation where one defendant may be suffering under a sense of grievance, apparent or real, because he is being differentiated against

with regard to one or another of other defendants involved in the same matter."

On 23 May the learned magistrate continued the applicant's bail but added a condition that the applicant surrender his passport and any other travel documents to the informant. He granted liberty to the applicant to apply to

have his passport or travel documents returned to him should it

become necessary for him to leave the jurisdiction. On 18 June the applicant answered his bail and was again remanded until 16 duly. The presiding magistrate on this occasion was the first

respondent to the present proceedings. He continued the applicant's bail on the same conditions as had been fixed on 23

indeed there is evidence to this effect, that it is unusual for

one magistrate to vary the conditions of hail granted by another magistrate. For this reason, and since an application for review of the first magistrate's decision had already been filed in this court, no substantial argument was presented to the first respondent that he should vary the terms of the bail

Before this court the applicant has filed an affidvit deposing to many facts which were not before the magistrate. He denies the charge which has been preferred against him. The maximum penalty attached to the charge against him 1s imprisonment for three years. The applicant says he has not yet received any particulars of the charge against him from the prosecution and therefore cannot offer any evidence at this stage of his innocence, save of general assertion of it. He is 43 years of age, married and has three children. He lives in a suburb of Perth in a house owned by a family company. He has resided at this address since 1978 and has lived all his life in Australia. All his personal interests are in Western Australia and all his family live in Perth. He is a member of a number of sporting and social clubs in Perth and takes an active part in the running of some of them. All his business interests are in Western Australia, although they are such as to make it necessary for him to be free to travel overseas from time to time. In the near future he expects to have to travel to Indonesia on business for a company of which he is the chief

In December 1983 he travelled to the United States of America on behalf of another company, of which he is also the chief executive officer, for the purpose of acquiring machinery. That machinery has now arrived in Australia and will be used to manufacture goods which it is hoped to export to South-East Asian countries. It will be necessary from time to time for him to travel to those countries to facilitate those sales. He has other business interests which may make it necessary for him to travel to the United States of America to conclude negotiations in respect of a substantial property transaction involving land in this State. He is presently the captain of a team which is to contest a fishing tournament in Hawaii in August this year. He has captained this team for the

last three years and has planned the trip to Hawaii for many

Few, if any, of the matters to which I have just referred were placed before the learned magistrate when he

imposed the condition that the applicant surrender his passport. I think this was unfortunate but I do not for one moment criticise those who appeared for the applicant because one knows from one's experience that these matters sometimes

I turn now to consider whether any claim has been made

out for relief under the Judicial Review Act. Section 15 of the Crimes Act provides:

"15. Where a person is charged before a Court of Summary Jurisdiction, with an offence against the law of the Commonwealth, if, from the absence of witnesses or from any other reasonable cause, it becomes necessary or advisable to defer the hearing of the cause, the court before whom the accused person appears or is brought may -

(b) order the discharge of the defendant upon his entering into a recognizance conditioned for his appearance at the time and place appointed for continuing the hearing.

Counsel for the applicant contended that 3.15 did not confer power on the learned magistrate to impose the condition requiring the applicant to surrender his passport and travel documents. He was unable to quote any authority for this proposition, but its novelty is no answer to it. I should say at once that if the submission is correct, it would lead toa highly inconvenient result in very many cases because no doubt many persons whose innocence is subsequently established are admitted to bail on similar conditions. Such persons might not get bail at all except on condition that they surrender their

However, I am of the opinion that the submission is not well founded. I think the use of the word "may" in 3.15

imports a discretion. Certainly this has been the construction attributed to the section (and similar sections in other

legislation) for many years and I see no reason to read 3s. 15

as depriving a magistrate from exercising the power to grant

That is not to say that a discretion can be exercised for reasons dissociated with the power itself, and there is, of course, much authority that when conditions are imposed they must be conditions which can be reasonably regarded as related to the purpose for which the power is given; see Shrimpton v The Commonwealth (1945) 69 C.L.R. 613 at 619-20 per Latham C.J. and Allen Commercial Constructions v North Sydney Municipal Council (1970) 123 C.L.R. 490 at 499, per Walsh J. The question then is whether the magistrate's decision to impose the relevant condition in this case is susceptible of review under the Judicial Review Act. The primary basis upon which the attack is made on the decision is that it was an improper exercise of the power conferred by 3.15 of the Crimes Act. The way in which this submission was put was that, in terms of s.5(2)(f£) of the Judicial Review Act, the exercise of the discretion to admit to bail in this case was undertaken in accordance with a rule or policy without regard to the merits of the particular case. In this respect, counsel referred me to parts of the transcript of the proceedings before the first magistrate, in which it was said, for instance, that it was not unusual in the case of an alleged offence involving a considerable sum of money for the court to require the

I do not think it can be said that the learned magistrate did decide this matter by reference toa rule or policy without regard to the merits of the case. The first

magistrate was informed by counsel for the prosecution that the

charge was a serious one. It was said to involve the stripping of some 31 companies in what was described as a "bottom of the harbour" scheme, and he was informed that"very substantial sums of money indeed" were involved in the scheme. When the matter came before the first respondent in this case - that is to say, the second magistrate - he was informed that a sum of about $4.2 million was involved in the transactions to which the

In these circumstances I do not think it is a fair reading of what transpired in the Magistrate's Court to characterise the decision as one made without regard to the merits of the particular case under consideration. I am of the view that it cannot be said that, on the material before the magistrate, it was an improper exercise of his power to grant bail, to impose a condition that the applicant surrender his passport. Whether an accused person should be admitted to bail and, if so, upon what terms, is a matter particularly suitable to be determined by the magistrate. In the present case, the magistrate had to determine on the material before

him whether it was reasonable or not to require the applicant

to surrender his passport. He was concerned to ensure, so far

as was reasonably possible, that the applicant would answer his

bail when called upon. One method of ensuring that result was to make it difficult for him to leave the jurisdiction by

I should observe that counsel for the applicant submitted that his client had no avenue of review of the magistrate's decision other than to come to this court under the Judicial Review Act. He pointed to 3.9(1) of the Judicial Review Act as leading to that result. Although s. 573 of the Western Australian Criminal Code has hitherto been resorted to in appropriate cases to review decisions of magistrates fixing bail in respect of persons charged with offences against the law of the Commonwealth, it was said that that provision was no longer available because of the provisions of s. 9(1)(a). This construction of the Act was disputed by counsel for the respondent. It is not a question, however, which can affect the outcome of the present proceedings. I must determine this Matter solely on the basis of whether or not the applicant has been able to bring himself within s.5 of the Judicial Review Act.

In Lamb v Moss (1983) 49 A.L.R. 533 at 545-6 a Full

"In Sankey v Whitlam, Gibbs ACJ said (142 CLR at 25-6): 'In any case in which a declaration can be and is sought ona question of evidence or procedure, the circumstances must be most exceptional to warrant the grant of relief. ...a court will be reluctant to make declarations ina matter which impinges directly upon the course of

proceedings ina 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 Ibeneweka v Eqbuna (C19641 1 WLR 219 at 224) I nevertheless consider that if a judge failed to give proper weight to these matters it could not be said that he had properly exercised his discretion.'

In the same case, Stephen J, with whom Aickin J agreed, said (at 80) that in many cases refusal of relief as an exercise of discretion 'may be called for so as to avoid interference with the due and orderly administration of the law and with the proper exercise by magistrates of their functions in committal proceedings'. Mason J said (at 81-2): '... a plaintiff for declaratory relief in relation to committal proceedings needs to show some special reason why the court should grant the relief sought in lieu of allowing the committal proceedings to pursue their ordinary course .

In Moss v Brown, supra, the New South Wales Court of Appeal said (£19791 1 NSWLR at 132): "... 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 proceedings, 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 hardly provide an appropriate basis for the exercise of any jurisdiction which the court has": see also Perry v Nash (1980) 32 ALR 177 at 180; Conwell v Tapfieid £19811 1 NSWLR 595 at 601; Atkinson v United States of America Government (£19711 AC 197 at 325; and compare Imperial Tobacco Ltd v Attorney-General £1981] AC 718 t 741, 742, 746, 752.

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

in the absence of special circumstances, constitute an error of principle, as Gibbs CJ pointed out in

Thus, even if a case had been made out that some error had been made by the magistrate in fixing the applicant's bail, discretionary considerations would make it, in my opinion, inadvisable to grant relief in the present case. As I have said, I am unable to say that the learned magistrate's decision was an improper exercise of the power conferred on him by 3.15 of the Crimes Act. Nor can it be said that there was no evidence or other material before him justifying his decision. It is true that there was no formal evidence before the magistrate but, as is usual in these cases, submissions were made from the bar table as to matters affecting the question of bail. The seriousness of the alleged offence was made clear to the magistrate. Although counsel for the applicant did not seriously press the argument under 3.5(1) of the Judicial

Review Act, I am of the opinion that in any event it could not

However, I should make it plain in these reasons that, in dismissing the application as I do, I am not to be taken as holding the view that on the material before this court it would be reasonable to require the applicant to surrender his Passport as a condition of his bail. I would have thought that if the material before this court is placed before the learned magistrate he might well be persuaded that there was no need to

As I have already pointed out, the main thrust of the argument put to the learned magistrate in the first instance was that the applicant should not be treated differently from his co-accused, Mr Briggs. The magistrate, in my opinion, correctly rejected that argument asa sufficient basis for declining to require the surrender of the applicant's passport. Had the evidence which has been placed before me been placed before the nagistrate, I would have thought it probable that he would not have required the applicant to have surrendered his passport. There does not appear to be any positive evidence to Suggest that the applicant will not answer his bail. On the contrary, there is quite powerful evidence that all his property, business, social and family contacts are in this State. There is also persuasive evidence that he needs to have his passport readily available from time to time to make numerous visits overseas. Whilst in many cases a provision that he have liberty to apply to retrieve his passport might be appropriate, on the special facts of this case it does seem to me to be a highly inconvenient one to the applicant and one

which might well have not been imposed had the magistrate had all the facts in front of hin.

I should also add that, whilst the charge against the applicant is avery serious one, the fact that it carries a Maximum penalty of three years signifies that it is not by any means included amongst the most serious charges in the criminal

calendar. I say that notwithstanding the large sum of money

involved. I think it fair to regard the commission of an offence as being best indicated by the penalty imposed by the

I was advised during the course of argument that it is quite umusual for one magistrate to vary the terms of bail granted by another magistrate. I can readily understand that this would normally be the case. However, it would be unfortunate in the present case if fresh consideration were not given to all the facts surrounding this present application. It seems to me that the adoption of the usual and understandable practice of one magistrate not varying bail conditions fixed by another should, in the interests of the proper administration of justice, be varied in a case in which it is possible to place before a second magistrate material which was not before the magistrate who first fixed the terms

I think that it is appropriate in this case that the

applicant should pay the respondents' costs. If, at some future point of time, it is held that s. 573 of the Western

Australian Criminal Code does not avail a person charged with an offence against the laws of the Commonwealth, I would leave

entirely open the question whether an unsuccessful applicant

who seeks to challenge by an application under s.5 of the Judicial Review Act the conditions of bail fixed by a