any promise of favour, and nothing to fear from any threat, which
may have been held out to you to induce you to make any admission
or confession of your guilt; but that whatever you now say may be
given in evidence upon your trial, notwithstanding any such
promise or threat.".
(2) Upon the trial of the defendant, any evidence given or
statement made in pursuance of this section
may be given in evidence.
(3) Omitted
(4) Nothing herein contained 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 him.
111. DEFENDANT MAY CALL WITNESSES
(1) When the defendant has given evidence or made his statement,
or has declined to do so, the Justice, before he commits the defendant
for trial or admits him to bail, shall ask the defendant
whether he
desires to call any witness.
(2) Any witness whom the defendant desires to call shall then be
called, and the
statement of any such witness who knows anything
relating to the facts and circumstances of the case, or any evidence
tending
to prove the innocence of the defendant, shall be taken."
6. The transcript of the committal proceedings show that the magistrate
did
not observe those statutory provisions and it is agreed that upon listening to
the tape recording of the proceedings the transcript
is, for these purposes,
an accurate record of what transpired.
7. Counsel appeared before that Court both for the informant and
Mungaribi.
Neither of them drew the magistrate's attention to those provisions of the
Act. Transcripts of other committal proceedings,
which come to this Court
regularly, show that the procedure is followed.
8. The proceedings before the magistrate were somewhat
confused, in that it
appears that there were a number of separate charges against Mungaribi.
Those, the subject of these proceedings,
were dealt with by way of the
procedure permitted under s. 105A and 105B of the Act. Having tendered the
documents, counsel for the
informant informed the Court that "that is the case
for the informant in the matter". Counsel for Mungaribi then said "I make no
submissions, sir". Discussion then took place regarding the disposition of
the other charges. The magistrate then said "All right,
well in relation to
the other five matters, as I said, there's sufficient evidence to put the
defendant on his trial. I direct he
be committed for trial As I have said no
one adverted to sections 110 and 111 of the Act.
9. The questions to be answered now are
whether or not the requirements of
the Act are mandatory or directory? Does failure to follow those provisions
vitiate the committal
proceedings? Can counsel for an accused person, by his
conduct, dispense with compliance with those requirements?
10. In Howard
v Bodington (1877) 2 PD 203 at 211, Lord Penzance said, as to
whether mandatory enactments shall be considered directory only, "I believe,
as far as any rule
is concerned, you cannot safely go further than that in
each cas you must look to the subject matter, consider the importance of
the
provision and the relation of that provision to the general object intended to
be secured by the Act, and upon a review of the
case in that aspect decide
whether the enactment is what is called imperative or only directory ..."
11. The two provisions of the
Act find their place in Part V dealing with
indictable offences. When all the evidence offered by the prosecution has
been taken,
the Justice shall consider whether it is sufficient to put the
defendant upon his trial for any indictable offence (s. 109(1)). The
power of
the Justice extends to consideration of whether there is sufficient evidence
to put the defendant upon his trial, not only
for the offence charged but some
other indictable offence. If some other such offence, he should see that the
defendan is charged
with the offence which he considers the evidence supports.
(Hannon's Summary Procedure of Justices - 4th Edition - p 142).
12. Section
109(3) then provides that if the Justice is of the opinion that
the evidence is so sufficient he may -
(a) "if the charge is
one of a minor indictable offence, proceed in
the manner directed and under the provisions in that behalf contained in
Division
2;
(b) unless the defendant is charged with a capital offence, or
with manslaughter, ask the defendant whether he wishes
to plead to
the charge as provided in Division 3, and proceed as thereby directed; or
(c) proceed with the examination as
provided in the next
succeeding sections."
13. There is no question here that the charges were for minor indictable
offences.
Taken with s. 134, it is clear that the magistrate has a discretion
a to whether he asks the defendant whether he wishes to plead
to the charge
under 109 (3)(b). That not being done the only course then open to the
Justice to proceed with the examination as
provided in the next succeeding
sections.
14. The provision of sections 110 and 111 are set out above. They have a
purpose. Section
112 provides that when the examination is completed, that is
after proceeding with the examination, and completing it, the Justice
is to
again consider whether the evidence, that is all the evidence including any
put forward pursuant to the provisions in s. 110
and s. 111, is sufficient to
put th defendant upon his trial for any indictable offence. Again, it seems
to me the Justice must
then consider whether to put the defendant on his trial
for the offence charged or any other offence. Evidence given by or on behalf
of the defendant may have an effect on that consideration by leading the
magistrate not to put the defendant upon his trial at all,
or for some offence
other than that with which he is charged.
15. To fail to advise a defendant of his rights is to deny him the
opportunity, if he wishes to avail himself of it, to bring evidence which may
effect the magistrate's considerations.
16. Committal
proceedings constitute an important element in the protection
which the criminal process gives to an accused person (per Gibbs A.C.J.
and
Mason J. Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at p 99). After referring to
Lord Devlin's description of committal proceedings as "an essential safeguard
against wanton or misconceived
prosecution", their Honours went on "This
comment reflects the nature of committal proceedings and the protection which
they give
the accused viz. the need for the Crown witnesses to give their
evidence on oath, the opportunity to cross-examine, to present a
case and the
possibility the magistrate will not commit" (emphasis added). The deprivation
of the opportunity of a defendant to
call evidence in rebuttal is "a serious
departure from the ordinary course of criminal justice" (p 100).
17. This case and many
others referred to by counsel relate to the stay of an
ex officio indictment (see also the judgment of Asche C.J. in R v Haslett
[1987] NTSC 68; 50
NTR 17), but the observations as to the place of committal proceedings in the
criminal justice system are apt for the purpose of this case.
If committal
proceedings are embarked upon then those purposes must be forever kept firmly
in mind, (see O'Leary J. in Ngalken
12 A Crim R 29 esp pp 34 - 36),
notwithstanding that in many or even most cases defendants do not wish to
avail themselves of the opportunity to
go into evidence. Notwithstanding the
modern approach evidenced by ss. 105A and 105B, committal proceedings are not
just a formality,
and the Territory Parliament has not yet seen fit to
dispense with the requirements of ss. 110 and 111 if the defendant is
represented
by counsel or a solicitor (see R. 7, Magistrates Court Rules set
out in Archbold - 41st Edition para. 4 - 197 at p 304).
18. In
R v Gee (1936) 2 KB 442 and R v Phillips (1929) 1 KB 63, it was held
that irregularities in the prescribed manner of taking depositions at
committal proceedings rendered committals for
trial thereon invalid.
19. Kelly J. in Ex parte Sloane (1983) 8 A Crim R 424 at 439, referring to
equivalent provisions in the Court of Petty Sessions Ordinance (ACT.), said th
after finding there was a prima
facie case in committal proceedings, the
magistrate "should thereupon have .... said to her the words set out in s. 92
(i)(ii) of
the Ordinance. In my opinion the procedure set out in s. 92 of the
Ordinance is required to be followed at the close of the prosecution
evidence
.. His Honour certainly indicates that, in his view, the requirements are
mandatory. They were in fact met in the committal
proceedings, but in an
irregular way. His Honour declined to grant relief in all the circumstances
of that case which have no parallel
here.
20. On a reading of the provisions in question here, they are mandatory and
given the purpose for which they are provided,
I am not prepared to construe
them as directory. They have stood for many years, and from a time when legal
representation may not
have been always available to persons in all parts of
the Territory where committal proceedings could be conducted. That position
may now have changed but the statutory requirements remain, and I do not
consider that there is any reason to construe the words
in any way other than
the plain language employed.
21. The object of the provisions is one of general policy relating to all
persons
charged with indictable offences and for their benefit. Public
interests are involved. The requirements are indispensable. The
duties
imposed are imposed upon the Justice conducting the examination and a failure
to observe them cannot be rectified or made
good by acquiescence, even by
experienced legal practitioners.
22. I have said enough to show that the committal proceedings were
void.
Essential steps, required by statute to be undertaken, to ground the
magistrate' jurisdiction to commit Mungaribi for trial
were not taken. The
question now is what orders should be made? There appears to be some doubt as
to the power of a superior Court
to make an order in the nature of certiorari
to quash in relation to committal proceedings and the issue was not argued
before me.
The time available has not allowed detailed research to be
undertaken and to review the authorities and consider the conclusion
arrived
at by Aronson and Franklin "Review of Administrative Actions" at pp 586 and
587.
23. In those circumstances I consider that
the better course is to make a
declaration that the order for committal of Mungaribi for trial was a nullity.
From that it follows
that proceedings upon the indictment be permanently
stayed.