Potter v Tural & Anor; Campbell v B A H & Anor [2000] VSCA 227

Potter v Tural & Anor; Campbell v B A H & Anor [2000] VSCA 227 - VSCA 2000 case summary — Zoe

[36]

It is established by a long line of authority in Victoria that a magistrate's order committing for trial or refusing to commit is ministerial and not judicial and also is not amenable either to certiorari (as I shall for convenience call relief in the nature of certiorari to quash)[12] or to appeal under statutory appeal procedures replacing certiorari.[13] The better view as to the ground of the latter proposition is now considered to be, not the ministerial nature of the order,[14] but the fact that it determines nothing save the sufficiency, in the magistrate's opinion, of the evidence to put the defendant upon trial for an indictable offence.[15] Although the law in some States, in the Federal Court and in England, Wales and Northern Ireland[16] may be different in some cases at least as a result of legislation, neither respondent sought to challenge the Victorian authorities (assuming that a challenge would have been possible before the Court as presently constituted). Now, the principal purpose of a committal hearing is to determine whether in substance, however the precise test may be phrased, the evidence is sufficient to warrant the defendant's being put on trial for an indictable offence[17]. If a decision or order effectuating that purpose is not amenable to certiorari, it seems to me impossible for a preliminary decision or ruling made on the way to effectuating that purpose, even if denominated an order, to be amenable to certiorari: the greater comprehends the lesser. The judgment of Smith, J. in Phelan v. Allen[18] makes this clear. Neither respondent could have waited until the conclusion of the committal proceeding and, if he was committed for trial, have then obtained certiorari to quash that decision on the basis that cross-examination of the alleged victim or victims had been refused erroneously, for, as stated, the decision to commit would not have been amenable to certiorari. I cannot accept that by moving earlier but on the same basis the respondent could obtain certiorari.

[40]

It was the primary contention of the respondents that the case fell within the situation (1), the magistrates' decisions being said to be, not steps in the process, but the process itself. That contention cannot be accepted. The magistrates' decisions refusing leave to cross-examine here were not the ultimate decisions in even their decision-making process. It is true that, unless an extension was obtained under clause 12(5), their rulings finally determined the applications for leave to cross-examine, but that is clearly not what "the ultimate decision" means in the passage under consideration.[24] Accordingly, they do not fall within the first situation described by their Honours. Nor can the decisions refusing leave come within the second situation described; for the magistrates' ultimate decisions whether to commit or not will not affect legal rights[25], especially as the Director of Public Prosecutions may proceed contrary to them, whether they be to commit or to discharge[26]. To rebut that conclusion, the respondents contended that the exercise of the "right" to cross-examine had the potential to affect the magistrates' decisions under clause 23. That may be accepted. Counsel also drew attention to the fact that, in the event that a prosecution witness died before trial or was otherwise unavailable, the deposition of the witness would not be able to be used as evidence in the trial pursuant to s.55AB(2) of the Evidence Act 1958 because the defendant had not had "a full opportunity of cross-examining the witness" as required by sub-para.(b)(i) of sub-s.(2). Counsel also referred to disadvantages or difficulties arising, or said to arise, under the Crimes (Criminal Trials) Act 1999 in cases where cross-examination at the committal hearing had not been permitted. Thus, the accused might not be able to agree to the admission of evidence in the defence response pursuant to s.7(3) of that Act without first having cross-examined. It was also suggested that it would not be possible to obtain an order under s.11(1) of that Act to take before trial the evidence of a witness if leave to cross-examine him at the committal hearing had been refused, because by sub-s.(2) an application may only be made for an order if, relevantly, the person was not "available to be examined" as a witness at the committal proceeding. But the correctness of that may be doubted. In my view, the consequences of a refusal of leave to cross-examine do not bring the magistrates' decisions within situation (2) in the passage cited from Hot Holdings.

[55]

Close to the commencement of his reasons his Honour summarised the provisions relating to cross-examination that were contained in Schedule 5 immediately before 1 July 1999. He did so essentially as follows. By clause 3(1) the informant was not required to arrange for the attendance at court for persons who had made statements unless the defendant, at least 14 days before the committal mention date, gave notice in writing requiring the attendance of such a person. By clause 3(4) the Court might at any time before the commencement of the committal proceeding, on the application of the informant or of its own motion, set aside, wholly or in part, a notice under sub-clause (2), but by sub-clause (7) it could not do so unless it was satisfied that it would be frivolous, vexatious or oppressive in all the circumstances to require a witness to attend the committal proceeding. Therefore, as his Honour said, under that legislation, subject only to the setting aside of a notice that was frivolous, vexatious or oppressive, there was what amounted to a right in the defendant to require the attendance for cross-examination of a person who had made a statement which formed part of the hand-up brief. As his Honour recognised, the provisions of the new Schedule 5 plainly were intended to make significant changes to the regime for cross-examination of witnesses in committals. Having, in the course of his consideration of the availability of certiorari, mandamus and prohibition, referred to several South Australian and New South Wales cases on corresponding legislation, his Honour in dealing with the intended scheme of Schedule 5 said that it was important to note the differences between the legislation in those States and that in Victoria, as well as the similarities. He pointed out that under s.106 of the Summary Procedure Act 1921 of South Australia a witness is not called unless the Court grants leave and leave is not to be granted unless the court is satisfied that there are "special reasons" for doing so. In determining whether special reasons exist the court must have regard to the same matters as contained in the Victorian clause 13(5). In addition, if the witness is a 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. That is a provision very similar to the Victorian clause 13(4)(b). His Honour pointed out that under the Victorian clause 13(4)(a) the ordinary requirement was that of substantial relevance of the evidence, not special reasons. (I would, however, observe that, whilst "special reasons" is in the ordinary case the sole criterion in South Australia, substantial relevance is in the ordinary case a necessary condition for, but, as I read clause 13(5), not the sole criterion of, the grant of leave in Victoria. In other words, the considerations enumerated in clause 13(5), whilst relevant to the pre-conditions, are also relevant to an independent discretion.) His Honour pointed out that in New South Wales under s.48E of the Justices Act 1902 on application of the defendant or informant or on their own motion the justices might direct the attendance of a person who had made a written statement if, but only if, in the case of a witness alleged to be the victim of a violent offence, they were of the opinion that there were special reasons why, in the interests of justice, the witness should attend or, in any other case, they were of the opinion that there were substantial reasons why, in the interests of justice, the witness should attend. His Honour referred[46] to cases in both those jurisdictions which I need not discuss in detail in which, whilst recognising (in South Australia at any rate) that proof of facts by means of statements in writing without oral examination or cross-examination had become the norm or (in New South Wales) at least that there had been substantial changes, the courts had stated that, subject thereto, previous statements by courts as to the role of committals continued to apply. His Honour then referred to statements in Barton v. The Queen[47] and in Grassby v. The Queen[48] as to the importance of committal proceedings and as to the value of the opportunity to cross-examine witnesses, which was amongst the protections and advantages which committal proceedings afforded accused persons.[49] Of course, as his Honour recognised, the procedures relating to committal proceedings have been considerably changed in several jurisdictions, including Victoria, since those decisions were given. It may also be observed that in Barton v. The Queen[50] Gibbs, A-C.J. and Mason, J. stated that the principal purpose of a preliminary examination is to ensure that the accused will not be brought to trial unless a prima facie case is shown or there is sufficient evidence to warrant his being put on trial or the evidence raises a strong or probable presumption of guilt, a statement which, in my view, is still true after the substantial changes in procedure. The primary judge here concluded that, in common with those other States, the new legislation in Victoria was not intended to override the accepted wisdom as to the importance of committals, but was directed more to curbing the excesses and abuse of the proper conduct of them[51]. In support of that view his Honour referred to the Second Reading Speech of the Minister in relation to the Bill to effect the amendments in Victoria.

[73]

It is thus necessary to consider whether Rule 9.02 is valid and, if it is not, the effect of having regard to it. There are two requirements for validity. First, the rule must be "for or with respect to" one of the matters listed in the lettered paragraphs of s.142(1). Secondly, sub-s.(5), reflecting the common law, requires that the rule not be inconsistent with a provision of the Act. In my opinion, Rule 9.02 makes provision for or with respect to matters relating to the practice and procedure of the Magistrates' Court in committal proceedings, and is thus authorised by para.(a) of sub-s.(1), in that it makes provision for or with respect to matters to be taken into account in determining an application for leave to cross-examine. Clearly an application for leave to cross-examine is procedural and adjectival. In my view, a provision that states criteria for the determination of such an application is itself procedural or adjectival. In Attorney-General v. Sillem[56] Lord Westbury, L.C., in the course of holding certain rules of the Court of Exchequer invalid, stated that[57] under a power to make rules as to "process, practice and mode of pleading" any rules might be made by the Barons of Exchequer "for the guidance of their own proceedings" which did not require legislative sanction. Again, a decision applying such criteria would, I should have thought, be described as one concerning a matter of practice and procedure and could not be described as one concerning a matter of substance, the other member of the dichotomy. What aids or amplifies a matter of procedure cannot, as it seems to me, be other than procedural. In essence, Rule 9.02 is directed to governing or regulating the mode or conduct of court proceedings[58] and is a means or instrument by which the ends which the administration of justice seeks are to be attained[59]. In my opinion, however, Rule 9.02, contrary to s.142(5), is inconsistent with clause 13(5) and thus void. It is true that clause 13(5) is not expressed to be exhaustive but "the interests of justice", listed in para.(d) of it, is an omnibus topic and thus covers the field not already covered by the preceding paragraphs. It is well established in Australia, not merely in the area of constitutional law, that where one law covers the field another law which makes provision for some aspect of that field is inconsistent with the first-mentioned law.

[75]

To determine whether either of the magistrates constructively failed or refused to exercise jurisdiction it is necessary to ascertain the task which was confided to them by the relevant legislation.[61] This question of statutory interpretation is that which is determinative of ground 1A. In my opinion, the task confided was simply to determine (1) whether the magistrate was satisfied that the evidence sought to be adduced had substantial relevance to the facts in issue and also, where a witness was under the age of 18 years, whether the interests of justice could not be adequately served except by granting leave; and, if the magistrate was so satisfied, (2) whether leave should be granted to cross-examine as proposed in the notice of intention, that is, whether such cross-examination should be allowed. This follows, in my view, from clauses 4(1)(c), 12(1)(a), 13(2) and (4) and 16(a) and (b). Clause 4(1)(c) appears to be an express grant of jurisdiction to entertain and decide an application for leave[62]. When sub-clause(5), mandatorily requires the Court to "have regard to" the matters enumerated there, it requires the Court to take those matters into account and give weight to them as a fundamental element in making its determination[63]. But the sub-clause does not go to jurisdiction by serving to delimit it with certain tests. Rather, it states criteria or considerations that are obligatory in making the determination confided to the Court. If a magistrate granted leave without having had regard, even tacitly, to consideration (a) for instance, he would not, in my opinion, have failed to exercise jurisdiction (or acted without jurisdiction), but would have made an error within jurisdiction. Unlike the satisfaction required by sub-clause (4), the Act does not require the considerations enumerated in clause 13(5) to be taken into account "as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case"[64]. Nor, in my opinion, if the Magistrates' Court misconstrues clause 13(5), can it be said that it "thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case"[65]. Rather, I consider, the following passage from the judgment of the High Court in Craig[66] is applicable, namely:

[79]

It was submitted for the respondent Tural that, in addition to adopting a Rule which was invalid (a submission with which I have already dealt), the magistrate failed to exercise jurisdiction in that he, first, failed to apply the considerations enumerated in sub-clause (5) and, secondly, had regard to an irrelevant consideration, the embarrassment of the witness. Even if the first of those grounds were factually correct, it follows from the view of sub-clause (5) which I have expressed that that does not show a declining of jurisdiction. But I would add that, bearing in mind that the Magistrates' Court is a very busy one and that an application for leave is merely a preliminary procedural application, I am not persuaded by the argument from silence that the magistrate did not have regard to the considerations enumerated in sub-clause (5), which I should have thought would be present to the mind of a magistrate with some familiarity with committal proceedings. There is much to be said for the view that the magistrate could not have been unaware of consideration (c) and, as a judicial officer, of consideration (d), as indeed the argument revealed, and that the argument before him demonstrated that considerations (a) and (b) were satisfied in that it was clear that the defence knew what the prosecution case was and the respondent's practitioner had herself made clear the real issue. Reasons are at least desirable, but, as in applications for leave in other areas of the law in this State and elsewhere, they need only be brief[67]. If submissions had concentrated on one or more of the considerations enumerated in sub-clause (5) ordinarily a brief reference to the consideration or considerations in question might be expected unless some overriding factor (such as the requirement of sub-clause (4)(b)) determined the magistrate's decision. But the argument before the magistrate for leave to cross-examine the witness Barnes was not of that kind. It simply stressed the relevance of the proposed cross-examination.

[81]

49 His Honour was, as I have indicated, principally concerned with error of law on the face of the record, a matter with which, in view of my conclusion that certiorari is not available, I am not concerned at all. But he treated the reasons which he gave[68] at the conclusion of his consideration of the application by the respondent Tural as applicable to mandamus as well.[69] I respectfully consider that Mr. Coghlan is correct in his submission that in his whole consideration of the case the judge was overborne by his view of the appropriateness, desirability and importance of cross-examination. Earlier Mr. Coghlan had put the same submission in slightly different language, when he submitted that his Honour had elevated the right to cross-examination over the new regime, which led him to conclude that there had been a serious error justifying mandamus. It seems to me that to overvalue or undervalue is to make an error within jurisdiction. Even if there was a misunderstanding as to the operation of the considerations in clause 13(5), for the reasons I have given misapplication of them did not amount to a declining of jurisdiction. But I respectfully cannot agree that the magistrate misunderstood the scope of the new legislation or applied the wrong tests in his consideration of the application. The amendments which came to force on 1 July 1999 made, in my view, very substantial changes to the nature of and procedure in committal proceedings as existing at common law and under the immediately preceding statutory regime. There is no longer an assumption in favour of cross-examination. Indeed, clause 13(2) shows the reverse: the magistrate has to be persuaded to allow it. The evidence of proposed witnesses is in writing and on oath, so that the first advantage or protection which an accused formerly had from a committal proceeding that was identified by Gibbs, A-C.J. and Mason, J. in Barton[70] in substance remains. Schedule 5 as substituted with effect from 1 July 1999 clearly had as one of its purposes restriction of the opportunity to cross-examine such witnesses and the reduction in the length of cross-examination when it was permitted. The third and fourth advantages or protections identified by Gibbs, A-C.J. and Mason, J. - the opportunity of calling evidence and the possibility that the magistrate will not commit - remain, although I would acknowledge that that possibility is reduced where cross-examination is not permitted.

[82]

It was argued for the respondent BAH that the magistrate had declined to exercise jurisdiction because he had delegated his task to the Office of Public Prosecutions. It was also said that the case was a classic one for cross-examination because of the "bare bones" nature of the Crown case and the absence of corroboration. If the matter was borderline cross-examination was likely to tilt the balance against the committal of the defendant for trial. The magistrate had declined jurisdiction by failing to balance this consideration against the age of the victims and the type of offence. Putting aside Mr. Coghlan's point that cross-examination might in some cases make the Crown case stronger, this latter argument, if correct, plainly does not show failure to exercise jurisdiction but simply error within jurisdiction. In any event the argument is not correct, for it is clear from his Worship's own words in argument and in his ruling that he undertook a balancing exercise in order to decide whether the interests of justice required the grant of leave. Reverting to the first argument, I do not accept that there was any delegation by the magistrate of his decision to the Office of Public Prosecutions. He merely added to his reasons for refusing leave a comment intended to be of assistance. It is to be borne in mind that the test put for committing a defendant is different from the presently relevant test for entering a nolle prosequi (namely, whether there are no reasonable prospects of conviction). It is irrelevant that, as the prosecutor stated, cross-examination might have assisted the Director of Public Prosecutions in deciding whether to enter a nolle prosequi, but that consideration did not enter into his Worship's reasons for decision. In my opinion, the correct analysis of the magistrate's reasons for refusing leave to cross-examine the victims is that he did so because he was not satisfied, as he was required to be by clause 13(4)(b) if he was to grant leave, that the interests of justice could not be adequately served except by granting leave. He was, as Mr. Coghlan submitted, "alive" to the interests of the respondent and he did take them into account in a balancing exercise, but it is clear that from the commencement of the hearing of the application the magistrate was very concerned about whether clause 13(4)(b) was satisfied. It can, I think, be said that in a broad way the matters enumerated in sub-clause (5), so far as not obvious, were touched on in argument or in the magistrate's reasons. In not being satisfied as required by clause 13(4)(b) the magistrate did not decline to exercise jurisdiction. Even if he was in error in not being so satisfied (which I do not suggest), that was an error within jurisdiction.

[86]

Despite the numerous, strong and authoritative statements against the interference in the criminal process and in particular in committal proceedings by superior courts in the exercise of their supervisory jurisdiction, it cannot, in my view, be said that they bound his Honour so to exercise his discretion as to refuse the relief to which on the merits he had held the respondents were entitled. If the circumstances were "exceptional or special" he might have exercised his discretion favourably to the respondents, as Charles, J.A. considered appropriate in The Magistrates' Court at Prahran v. Murphy[73]. But, in my respectful opinion, it does seem that his Honour misunderstood or overlooked one matter. That is the delay or protraction caused in each case to the committal proceeding and thus to the trial (if there should be one) by the obtaining of the decision of the Trial Division, in contradistinction to any fragmentation or delay caused by a favourable decision of the Trial Division. That the delay caused by the application to the Supreme Court for relief is material is shown by what was said in Sankey v. Whitlam by Gibbs, A-C.J.[74] and by Mason, J.[75]. The latter passage in particular shows that there are two unacceptable consequences of applications for prerogative or like relief, namely fragmentation (or discontinuity) and delay, each of which is material. Even if it be correct to say that there is no fragmentation because the trial process, starting with a committal, has not yet begun, I respectfully cannot agree that the trial process has not in both cases been unduly delayed by the application for and the obtaining of leave by way of judicial review at first instance. I say this notwithstanding the considerable expedition with which the proceedings, once instituted, were, despite the long vacation, brought on for hearing and determined. It follows that the exercise of his Honour's discretion miscarried and that the discretion would have fallen to be re-exercised had a prima facie entitlement to relief in the nature of mandamus been made out. But since that is not the case I need not consider the topic further.

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