Schneider v Brydon LCM

Supreme Court of NSW|2012-05-16|Before: McClellan CJ, Studdert J

CLR 355 Putland v The Queen [2004] HCA 8; (2004) 218 CLR 174 Qaumi v DPP (NSW) [2008] NSWSC 675; (2008) 186 A Crim R 72 R v Federal Court of Bankruptcy; Ex parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556 at 588 R v LB [2011] NTCCA 4 R v Murphy [1985] HCA 50; (1985) 158 CLR 596 R v Snow [1915] HCA 90; (1915) 20 CLR 315 Re Grinter; Ex parte Hall [2004] WASCA 79; (2004) 28 WAR 427 Re van Beelen (1974) 9 SASR 163 Sim v Corbett [2006] NSWSC 665 South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1 SS v the Australian Crime Commission [2009] FCA 580; (2009) 256 ALR 474 Williamson v Ah On [1926] HCA 46; (1926) 39 CLR 95 Category: Principal judgment Parties: Wayne Schneider (1st plaintiff) Kerry McDonough (2nd plaintiff) Brydon LCM (1st defendant) Commonwealth Director of Public Prosecutions (2nd defendant) Attorney General for NSW (Intervener) Representation: Counsel: M Abbott QC/J Stellios (1st & 2nd plaintiffs) L K Crowley (2nd defendant) B Baker (Intervener) Solicitors: Patsouris & Associates (1st & 2nd plaintiffs) Commonwealth Director of Public Prosecutions (2nd defendant) NSW Crown Solicitor (Intervener) File Number(s): 2011/309950

Judgment 1The plaintiffs seek orders in the nature of certiorari quashing the decisions of the first defendant to refuse an application by the plaintiffs to require the attendance of persons at the plaintiffs' committal proceedings for the purposes of cross-examination. The plaintiffs also seek declaratory relief to the effect that the first defendant erred in refusing their applications, as well as an order that the matter be remitted to the Local Court for consideration in accordance with law. 2Both plaintiffs have been charged with an offence contrary to s 35(1)(a)(ii) of the Australian Crime Commission Act 2002 (Cth) ("ACC Act") (obstructing or hindering an Examiner in the performance of his or her functions). An offence contrary to s 35(1)(a)(ii) is an indictable offence. 3On 4 May 2009 Examiner G E (Tim) Sage issued a summons to Mr Wayne Schneider requiring his attendance on 5 June 2009 at an examination to be held before the Australian Crime Commission relating to a special investigation. The summons required Mr Schneider to give evidence of "federally relevant criminal activity involving criminal activity by members and associates of Outlaw Motorcycle gangs". On the same day, an Examiner issued a summons to Ms Kerry McDonough in the same terms requiring her attendance at an examination on 27 May 2009. 4On 9 July 2009, Mr Schneider attended the examination with his legal representative. The legal representative sought an adjournment of the examination until after the Federal Court had determined proceedings challenging the validity of the summons. The Examiner refused to adjourn the examination. The Examiner informed Mr Schneider that he had a choice as to whether to go into the witness box and warned him that, if he refused to go into the witness box, that could constitute a hindering of the Examiner in the conduct of an examination. Mr Schneider through his legal adviser indicated that he refused to enter the witness box "not out of discourtesy but in respect of trying to pursue his rights in the Federal Court". The Examiner then discharged Mr Schneider and concluded the hearing. 5On 14 July 2009 Ms McDonough attended an examination with her legal advisers. Again an application was made for an adjournment until after the Federal Court had finally determined the validity of the summons. 6After hearing the application the Examiner again refused an adjournment. The Examiner told Ms McDonough that she had a choice as to whether to go into the witness box but warned her that if she refused she could face charges of hindering the Examiner in the conduct of an examination. Ms McDonough through her legal adviser indicated that she refused to enter the witness box. She was discharged and the Examiner concluded the hearing. 7The application that had been made to the Federal Court in relation to the validity of the summons was dismissed on 2 June 2010. 8Court Attendance Notices were subsequently issued in relation to both plaintiffs which were returnable in the Downing Centre Local Court in Sydney. 9The matters came before a magistrate in the Local Court for a committal hearing. The procedure for that hearing is provided by the Criminal Procedure Act 1986. Division 2 of Chapter 3 contains the relevant provisions. 10Section 55 of the Act provides that committal proceedings are to be conducted and determined by a magistrate. 11Section 64 provides that when all the relevant evidence of both the prosecution and the defence have been taken the magistrate must consider the evidence and determine whether or not "there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence." 12Section 65(1) provides that if the magistrate is of the relevant opinion "the Magistrate must commit the accused person for trial". 13Section 74(1), which supplies the basis for the present dispute, provides that evidence for the prosecution must be given by written statements that are admissible as evidence. 14Section 75 provides for the service of written statements and s 78 provides for the effect of those statements. Section 78(1) provides that a written statement by any person "is, if tendered by the prosecutor, admissible in committal proceedings as evidence to the same extent as if it were oral evidence to the like effect given in those proceedings by the same person." The Act also makes provision for the form and content of written statements. 15Section 91 provides a power in the magistrate to require the attendance at the committal proceedings of a person who has made a written statement that a prosecutor intends to tender as evidence in the proceedings. That section is in the following terms: "91 Witness may be directed to attend (1) The Magistrate may direct the attendance at the committal proceedings of the person who made a written statement that the prosecution intends to tender as evidence in the committal proceedings. The direction may be given on the Magistrate's own motion or on the application of the accused person or the prosecutor. (2) The Magistrate must give the direction if an application is made by the accused person or the prosecutor and the other party consents to the direction being given. (3) In any other circumstance, the Magistrate may give a direction only if satisfied that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence. (3A) A direction may not be given for the reasons referred to in subsection (3) if the written statement has already been admitted in evidence. This does not prevent a direction being given merely because the written statement is tendered to the Magistrate for the purpose of determining an application for a direction under this section. (4) The written statement may be admissible in evidence in the proceedings after the direction is given if: (a) the accused person and the prosecutor consent to the statement being admitted, or (b) the Magistrate is satisfied that there are substantial reasons why, in the interests of justice, the statement should be admitted. (5) A direction given on the application of the accused person or the prosecutor may be withdrawn only: (a) on the application, or with the consent, of the applicant, or (b) if the applicant fails to appear, on the application of the other party. (6) The regulations may make provision for or with respect to the determination of substantial reasons under subsections (3) and (4). (7) If a person attends to give oral evidence because of a direction under this section, the Magistrate must not allow the person to be cross-examined in respect of matters that were not the basis of the reasons for giving the direction, unless the Magistrate is satisfied that there are substantial reasons why, in the interests of justice, the person should be cross-examined in respect of those matters. (7A) A direction may not be given under this section so as to require the attendance of the complainant in proceedings for a prescribed sexual offence if the complainant is a cognitively impaired person (within the meaning of Part 6 of Chapter 6). (8) A direction may not be given under this section so as to require the attendance of the complainant in proceedings for a child sexual assault offence if the complainant: (a) was under the age of 16 years: (i) on the earliest date on which, or (ii) at the beginning of the earliest period during which, any child sexual assault offence to which the proceedings relate was allegedly committed, and (b) is currently under the age of 18 years. (9) For the purposes of subsection (8): child sexual assault offence means: (a) a prescribed sexual offence, or (b) an offence that, at the time it was committed, was a child sexual assault offence for the purposes of subsection (8), or (c) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a) or (b). complainant, in relation to any proceedings, means the person, or any of the persons, against whom a prescribed sexual offence with which the accused person stands charged in those proceedings is alleged to have been committed, and includes: (a) in relation to an offence under section 80E of the Crimes Act 1900, the person who is alleged to have been the subject of sexual servitude, and (b) in relation to an offence under section 91D, 91E or 91F of the Crimes Act 1900, the person under the age of 18 years who is alleged to have participated in an act of child prostitution, and (c) in relation to an offence under section 91G of the Crimes Act 1900, the person under the age of 18 years who is alleged to have been used for the production of child abuse material." 16A significant aspect of the plaintiffs' argument in the present case turns upon the terms of sub-section 3, which provides that if an accused person seeks the attendance of a witness to give oral evidence "the Magistrate may give a direction [to that effect] only if satisfied that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence". 17The prosecutor has served on each plaintiff a statement from the Examiner who issued the summons requiring the plaintiffs to attend for examination, detailing the circumstances in which each summons was issued. The summonses were issued under s 28 of the ACC Act. The statement in relation to the summons in respect of Mr Schneider was made by Mr Sage and that in respect of Ms McDonough by Mr Hannaford. Mr Hannaford was the Examiner who conducted both examinations. 18Before the magistrate application was made on behalf of both plaintiffs pursuant to s 91 of the Criminal Procedure Act that each of the Examiners be called to give oral evidence and be subjected to cross-examination. For this purpose, as contemplated by sub-section (3A), the magistrate was provided with the written statements. 19On 5 September 2011 the magistrate refused the application. His Honour indicated that he was "not persuaded that there are substantial reasons as to why in the interests of justice Mr Hannaford or Mr Sage should be called or directed to give evidence in these proceedings". 20The plaintiffs seek orders in the nature of certiorari quashing these decisions, together with declarations that the magistrate erred in refusing to require Mr Sage and Mr Hannaford to give evidence in the committal proceedings. 21The plaintiffs' arguments have a number of aspects. In short, it was submitted that the decision of the magistrate is infected by apprehended bias; that the magistrate did not apply the correct test under s 91; that the magistrate failed to take into account a relevant consideration, or took into account an irrelevant consideration; and that the magistrate's decision is explicable only by some unascertained error. In the alternative it was submitted that to the extent that s 91 of the Criminal Procedure Act "imposes a burden on the defendant to convince the committal court to make an order to have witnesses appear", the section is either invalid or not picked up by s 68 of the Judiciary Act 1903 (Cth). 22In his reasons the magistrate observed that the statements of Mr Hannaford and Mr Sage were "silent on the issue of the examination itself". However, the transcripts of the Examinations were before him and, having considered their content, the magistrate said: "It is clear from the statements that are contained in the transcript that both defendants elected not to speak to the examiner and that was clearly put by Mr Djemal on behalf of each or to enter the witness box for the purposes of being sworn. Clear inferences are available to be drawn from such refusals. Both accused were told that a refusal to enter the witness box would constitute a hindering. Ultimately this will be a question of fact to be determined. Again, the cross examination of Mr Hannaford will not advance in my view the material contained in the transcript." 23The magistrate then went on to say: "Whilst not unlike the situation that was before the administrative procedure in JJ v The Board of Australian Crime Commission the situation, of course, before me is different to that in the Northern Territory. Firstly, both Mr Hannaford and Mr Sage indicate that they were available to be called at trial. Both have given statements to the effect that had and did turn their minds to the question as to whether it was reasonable in all the circumstances for the issue of the summons and in the case of Mr Sage he specifically identified in the reasons that he was given, para (e) and (f) of the conclusions of those reasons, under the notice or the issue of the summons. There that was annexed as annexure 2 to his statement. Whilst Mr Hannaford does not identify with precision why it was that Ms O 'Donaghue was required in the reasons attached to the summons as to why she was specifically called is clear certainly in the transcript of the material in saying that it was because of her relationship with Hells Angel member and that she was likely to have knowledge about the matters which were significant to the investigation and that is why she is here are consistent with the views held by him as may be derived from the facts and circumstances that were presented to him at the time he made the determination as to whether it was reasonable. In relation to Mr Sage, of course, if one turns to para 61 of the judgment in that decision of the Northern Territory Court of Appeal decision it is clear that the threshold for determining the reasonableness is not a high one, however s 28(lA) as said provides "a foundation for compellability, that is the examiner must be satisfied that it is reasonable to do so ". It is suggested that that is not a high test and the identification, of course, in the reasons as to the connection of Mr Schneider to the determination in my view would be sufficient to make it clear that he had exercised his mind as to the reasonableness of the issue of the summons. On my view both proposed witnesses have identified and amplified the basis for issuing the summons from which the question of reasonableness arises for determination pursuant to s 28(1A). I am not satisfied that cross-examination will advance the views held by either and I am not satisfied that there is a substantial reason has been established as to why it is those two witnesses should be called on that particular point."

Submission 1:In determining the applications by the first and second plaintiffs, the first defendant exceeded his jurisdiction as the decision is affected by apprehended bias.

24The application which was made to the magistrate was submitted to be appropriate because the statements from Mr Hannaford and Mr Sage did not contain evidence as to the manner in which the Examination was hindered. It was secondly supported by a submission that the Examiners were not to be questioned in relation to their reasons for the issue of the summonses, it being asserted that a submission would ultimately be made that the summonses did not comply with s 28(1A) of the ACC Act and were accordingly void. 25It was submitted to this Court that in making his determination to reject the application under s 91 the magistrate had gone beyond what was required of him in finding that there were "clear inferences" which could be drawn from the transcript concerning the refusal of the witnesses to give evidence on the day in question. It was accordingly submitted that a reasonable observer of the proceedings might conclude, from those findings, that the magistrate might not bring an impartial mind to the question whether the plaintiffs should be committed for trial: McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 at [72]. Accordingly, it was submitted that an order prohibiting the magistrate from further hearing the matter should be made by this Court. 26I reject the submission. 27Although the magistrate was not required to make a finding in relation to the inferences which might be drawn from the transcript the fact that he did so does not display relevant bias. All that was before the magistrate on the relevant occasion were applications pursuant to s 91. Whether or not the same magistrate will hear and determine subsequent proceedings is unknown. 28In any event the remark by the magistrate was relevant to the decision which he had to make. That decision required him to determine whether there were substantial reasons "why, in the interests of justice, the witness should be required to attend to give oral evidence." In so far as the plaintiffs' application was concerned with the events within the Examination room it was relevant for the magistrate to consider whether or not the Examiners could provide any further evidence beyond the transcript. Upon the assumption that the transcript is proved to be the true record of the proceedings, it was clearly open to the magistrate to conclude that neither Examiner could further assist by reason of the fact that "clear inferences" were available from the transcripts themselves.

Submission 2:In determining the applications by the first and second plaintiffs, as to whether there were substantial reasons for the cross-examination of Mr Hannaford, the first defendant erred by:

(a)relying on inferences from the transcripts of proceedings before the Australian Crime Commission in preference to the statement of Mr Hannaford, sought to be relied upon by the prosecution in the committal proceedings; and/or

(b)failing to consider the absence of evidence of a critical elements (sic) of the charge in the statement of Mr Hannaford.

29In support of this ground it was submitted that the magistrate's finding concerning "clear inferences" arising from the transcripts indicates that the magistrate applied the wrong test in determining the s 91 applications. It was submitted that by having regard to those inferences, and by not accepting that Mr Hannaford could give evidence relevant to how he was actually hindered, the magistrate failed to take into account a relevant consideration or had had regard to an irrelevant consideration. 30It was submitted that an application under s 91 of the Criminal Procedure Act should not be refused because the magistrate forms a view that cross- examination would not result in discharge of a defendant: Hanna v Kearney (unreported, 28 May 1998, Studdert J) cited with approval in DPP v Losurdo (1998) 44 NSWLR 618 at 627. It was further submitted that an application under s 91 should not be refused in circumstances where a defendant might wish to cross-examine a witness to support an application under s 38 of the Evidence Act 1995 which may be made at the trial. It was further submitted that it was in the interests of justice that cross-examination take place to ensure the defendant is not taken by surprise at the trial, which in the present case concerned the failure of the witnesses to set out in the statements the basis for hindrance of their examination. 31The submissions must be rejected. 32The prosecution case is founded upon the transcript of the proceedings before the Examiner. That transcript records what the prosecution asserts to be the events which occurred on that occasion and it will be submitted to the magistrate that as a consequence a reasonable jury could conclude beyond reasonable doubt that the plaintiffs hindered the Examination. Contrary to the plaintiff's submissions, the Magistrate was entitled to consider the transcript in determining the s 91 application. There is nothing which the Examiner himself could add to the factual matrix which the prosecution will submit supports the relevant offence.

Submission 3:The first defendant erred in determining there were no substantial reasons for the cross-examination of Mr Hannaford and Mr Sage on the issues connected to the legality of the two summonses when, in circumstances (sic), cross-examination on those issues could have provided the plaintiffs with a defence to the charges and meant that the first defendant ought not to commit the plaintiffs for trial.

33The plaintiffs' submission in relation to this aspect of the matter relates to an asserted possibility that the summonses requiring the plaintiffs to attend for examination were not validly issued. Section 28(1) of the ACC Act provides as follows: "An examiner may summon a person to appear before an examiner at an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons." 34In relation to the summons issued by Mr Sage in respect of Mr Schneider the Examiner recorded the material facts upon which his decision was made. He said that he had regard to a statement of facts and circumstances provided to him and legal submissions. Under the heading "conclusions" he said that his consideration of the material facts and his general experience led him to be satisfied of various matters. It is plain that by expressing his conclusions he provided a record of his reasons why it was "reasonable in all the circumstances to [issue the summons]" (s 28(1A)). 35In his statement tendered to the magistrate Mr Sage records the fact that there is a typographical error in the reasons document. The document records the Examiner as signing it at 12.33 am. Mr Sage said it should have read 12.33 pm with the consequence that the decision to issue the summons and the record of that decision was made before the summons was issued, as required by s 28(1A). 36Although it was submitted that this was a matter of significance requiring, in the interests of justice, the cross-examination of Mr Sage, I do not believe that is so. It is plain that a typographical error occurred and the matter is of no consequence. 37The statement of reasons for the issue of the summons by Mr Hannaford is in similar form to that of Mr Sage. There is no typographical error in it. Mr Hannaford records that he had regard to a statement of facts and circumstances and legal submissions and, having regard to those documents, he was satisfied of various matters relevant to his decision. 38It was submitted that the form of the record asserted to be the reasons for the issue of each summons did not actually contain reasons. It was submitted that as a consequence the Examiners had failed to comply with s 28(1A) by failing to record in writing the reasons for the issue of the summons. It was submitted that this difficulty would be the foundation for a collateral attack in the proceedings upon the validity of the summons with the consequence that the prosecution would fail. 39The plaintiffs relied upon the decision of the Court of Criminal Appeal of the Northern Territory in R v LB [2011] NTCCA 4. In that case, the Court of Criminal Appeal held, in relation to the purported reasons of an Examiner, that there had been a failure to comply with s 28(1A) with the consequence that the summons was void. The form of purported reasons was similar to those of Mr Sage and Mr Hannaford in the present case. 40It is not necessary in these proceedings to decide whether or not the submission could succeed. However, it is significant that the Full Federal Court took a different view of the same form of reasons in JJ v Board of the Australian Crime Commission [2011] FCAFC 73. Furthermore, the Full Court determined that even if the Examiner failed to comply with s 28(1A), the summons would not be invalid. The Court reasoned that because the Act did not require that reasons be given to the recipient of the summons, the section was simply a mechanism for ensuring accountability in decision-making, and hence the validity of the summons was not dependent upon there being adequate reasons: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [55]. 41Beyond these matters, at the time when the summonses were issued in the present case, and at the time the relevant summons was issued in JJ, s 28(8) of the Act provided that: "A failure to comply with any of the following provisions does not affect the validity of a summons under subsection (1) of this section: (a)subsection (1A) of this section, in so far as that subsection relates to the making of a record; (b)subsection (2) of this section; (c)section 29A in so far as that section relates to a summons to subsection (1) of this section." 42Section 28(8) has not always taken this form. 43In R v LB the Court of Criminal Appeal reasoned that s 28(8) did not save the summons because the issue was not whether there had been compliance with s 28(1A) by recording of reasons but whether the Examiner had in fact been "satisfied" as the section requires. Accordingly, because the Examiner was not called by the prosecution to give evidence in the trial, the Court concluded that the Crown had not made out a case that the summons was validly issued - a necessary precondition for conviction of the relevant offence. 44If I were required to determine the matter for myself I would have considerable difficulty in accepting that this decision is correct. It is plain that the Full Federal Court had similar difficulties (at [79]). 45The Full Court's decision contains a useful analysis of the role of the presumption of regularity in the present context. The Full Court held that whatever may have been the position in LB, "we do not accept that the established facts in this case lead to the conclusion that the Examiner was not satisfied as to the reasonableness of issuing the summons" (at [84]). 46The Court of Criminal Appeal in LB rejected the conclusion of Jagot J in SS v the Australian Crime Commission [2009] FCA 580; (2009) 256 ALR 474 that drawing a Jones v Dunkel inference would be converting "mere conjecture and suspicion into inference". 47The Court of Criminal Appeal does not appear to have considered the application of the presumption of regularity. The reasons documents of each Examiner recorded the fact that they have had regard to the identified material "for the purpose of being satisfied under s 28(1A) of the ACC Act that is was reasonable in all the circumstances to issue the summons". 48If the issue was whether or not the Examiner reached the relevant conclusion, being the required state of satisfaction, before issuing the summonses, this was evidence that he had in each case. If the failure to give reasons (if that be the case) does not render the summons invalid, there can be no reason why in the absence of other evidence the validity of the notice could be questioned. 49However, in the present case the matter is not confined to a consideration of the reasons documents. Each of the Examiners in their statement states that he reached the relevant conclusion having regard to information which was placed before him at the time he made the relevant decision. 50In these circumstances the plaintiffs cannot demonstrate that the conclusion by the magistrate was not open to him. The evidence available from the Examiners' statements did not suggest that the plaintiffs would gain anything by an opportunity to cross-examine the Examiners. The suggestion that the relevant summonses may be invalid was entirely speculative. 51The remaining submission concerns the validity of s 91 of the Criminal Procedure Act.

Submission 4:The first defendant erred in applying s 91 of the Criminal Procedure Act 1987 (sic) (NSW) as that was not a law 'picked up' by s 68 of the Judiciary Act 1903 (Cth), or in the alternative, if s 91 of the Criminal Procedure Act 1987 (sic) (NSW), as applied to the proceedings operates to deny to a person, such as the plaintiffs, an opportunity to cross examine a material witness before being committed for trial for a Federal offence, it is ultra vires the Constitution of the Commonwealth of Australia as incompatible with the Federal jurisdiction invested in the first defendant.

52The plaintiffs submitted that the constitutional argument as it was framed involved the following steps: (1)Absent Commonwealth legislation, State Parliaments cannot confer non-judicial functions on Commonwealth judicial officers. (2)This is because it is only the Commonwealth Parliament that can legislate in respect of Commonwealth officers. (3)Because State judicial officers are used for Commonwealth committals pursuant to the autochthonous expedient created under the Constitution, the extent to which they can carry out any State administrative functions is conditioned by the nature and extent of the power they are exercising. (4)A State magistrate conducting a committal for a Commonwealth indictable offence is exercising Commonwealth judicial power. (5)Any non-judicial function which the State has conferred on the magistrate in his capacity as a State magistrate, such as conducting a committal in accordance with s 91 of the Criminal Procedure Act, will not apply, and therefore s 91 will be read down, to the extent that the exercise of Commonwealth judicial power is incompatible with that function. (6)This is so notwithstanding the provisions of s 68 of the Judiciary Act, which although providing for a "pick up" of State administrative processes, limits the extent of any pick up to the extent to which Commonwealth law allows. The exercise of Commonwealth judicial power generally and s 80 of the Constitution are limiting factors. (7)This is also because s 80 of the Constitution, as interpreted by the High Court, requires a trial of a Commonwealth matter to be fair in the relevant sense. Further, the High Court has accepted that a trial commences when the charges are laid and that a committal is part of the trial. (8)A State magistrate sitting as a committing magistrate in respect of a Commonwealth indictable offence and acting judicially is not able to perform functions imposed on him by the State which are either: (a)non-judicial; and/or (b)incompatible with the exercise of Chapter III judicial power. (9)The persona designata situation, which governs extraditions and the like and which is referred to in s 6AAA of the Crimes Act (Cth), only applies when a judicial officer is not exercising Commonwealth judicial power or an incident thereof. It is accepted that in those cases a Commonwealth officer may have conferred on him State administrative functions as a persona designata, and as an exception to the rule set out in step (1) above. This is an exception because in no case is the Commonwealth officer exercising Commonwealth judicial power or incidental judicial power. (10)Finally, because a trial under s 80 of the Constitution must be fair, and must be preceded by a committal that is also fair, in the event that there is a committal for a Commonwealth indictable offence where, as in this case, s 91 of the Criminal Procedure Act has been applied, it must follow, on this analysis, that the superior courts of NSW will be in breach of s 80 of the Constitution in conducting any subsequent trial because the entire process will not have been in accordance with s 80 of the Constitution. 53The essential thread of the plaintiffs' argument was that s 80 of the Constitution provides that the trial on indictment of an offence against any law of the Commonwealth shall be by jury. Relying upon the decision of the High Court in R v Murphy [1985] HCA 50; (1985) 158 CLR 596, it was submitted that the committal process is either in itself an exercise of Commonwealth judicial power or is incidental to the judicial power provided by s 80. 54The plaintiffs identified two passages in the judgment of the Court in Murphy which, it was submitted, were fundamental to their argument. Those passages were as follows. Firstly (at 616-17) the High Court said: "It is inconceivable that, when s 80 of the Constitution provided for 'the trial on indictment of any offence against any law of the Commonwealth [to] be by jury', the ordinary curial process for bringing an alleged offender to trial was not intended to be followed in the case of federal indictable offences." 55Secondly, (at 611) the High Court said that when considering "the traditional nature and function of committal proceedings and the close relationship between committal proceedings and the exercise of the judicial power of the Commonwealth in the trial of an alleged offender against a law of the Commonwealth" that: "In the case of an alleged offence against a law of the Commonwealth, the ultimate issue which it is the function of committal proceedings to determine is whether the alleged offender should or should not be subjected to the exercise of the judicial power of the Commonwealth in a subsequent trial. In such a case, the committal proceedings themselves form part of a curial process which is centred upon the judicial power of the Commonwealth and which, in the case of a subsequent trial, culminates in the exercise of that power. The course of justice in the case of such an alleged offence includes that curial process." 56It is important to remember the context in which Murphy's case was decided. The Crown had brought proceedings against Justice Murphy alleging that he had attempted to pervert the course of justice by influencing a magistrate who was to hear committal proceedings in respect of a person charged with a criminal offence. For that purpose the High Court analysed the role of committal proceedings and the relationship between committal proceedings and the judicial power of the Commonwealth. The issue is quite different in the present case where it is necessary to consider whether what has been referred to as "the paper committal" provisions of the Criminal Procedure Act may be utilised in relation to the prosecution of an offence against a Commonwealth law. 57The plaintiffs' submissions were ultimately confined to three propositions. It was submitted that because s 80 requires a jury to try an indictable offence, if a State provision authorised a procedure for trial by jury but does not allow for a trial by jury in what was referred to as the "constitutional sense", then s 68(1) of the Judiciary Act will not pick up the procedural provisions of the State Act. State provisions will not be picked up by s 68(1) if they are incompatible with the Constitution: Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541; Brown v The Queen [1986] HCA 11; (1986) 160 CLR 171. It was submitted that, accordingly, the paper committal provisions are incompatible with trial by jury as required by s 80. 58It is well-established that a trial by jury contemplated by s 80 refers to the common law institution of a jury trial. As Griffith CJ said in R v Snow [1915] HCA 90; (1915) 20 CLR 315 at 323: "The history of the law of trial by jury as a British institution ... is, in my judgment, sufficient to show that this provision ought prima facie to be construed as an adoption of the institution of 'trial by jury' with all that was connoted by that phrase in constitutional law and in the common law of England." 59This position has been endorsed a number of times: see for example Cheatle v The Queen at 549. 60The decisions so far have largely considered the significance of a trial by jury as it relates to the constitution of the jury and the way in which the jury exercises judicial power to determine guilt. The High Court has concluded that a jury must be impartial, independent, representative of the community, randomly selected and must deliver a unanimous verdict: Cheatle v The Queen at 560 (unanimous verdict required by s 80); Brownlee v The Queen [2001] HCA 36; (2001) 207 CLR 278 (jury can be reduced to 10 and allowed to separate after retiring); Ng v The Queen [2003] HCA 20; (2003) 217 CLR 521 (a system of additional jurors is consistent with s 80); and Fittock v The Queen [2003] HCA 19; (2003) 217 CLR 508 (a system of reserve jurors is consistent with s 80). 61Despite Griffith CJ's statement in R v Snow, not all that was connoted in 1900 by the expression "trial by jury" attracts the constitutional protection in s 80. The High Court has recognised that the common law institution can be reformed, and has developed a framework that distinguishes between "essential" and "inessential" features, with only "essential" features receiving the benefit of s 80 protection. The High Court has differentiated between essential and non-essential attributes by applying a functional test that looks to the functions that are essential for the jury to perform its task: Brownlee v The Queen at [7], [21]-[22] (Gleeson CJ and McHugh J); Ng v The Queen at [9]; Fittock v The Queen at [19] (McHugh J). 62The High Court has not yet fully considered and decided the connotations of the "trial" component of the expression "trial by jury". The plaintiffs' submission was that s 80 requires a particular form of "trial" to satisfy the constitutional requirement of "trial by jury" for federal offences tried on indictment. Thus, it was said, s 80 not only protects essential aspects of a trial by jury that relate to the performance of the jury's function; it also extends to essential aspects of the trial process that are integral to, and necessarily implicit in, a "trial by jury". 63The plaintiffs further submitted that the committal process is an essential part of, or even an essential precondition for, the exercise of judicial power by a s 80 jury and, accordingly, the committal and its "essential features" are required by s 80 whenever there is a trial on indictment of a federal offence or when the prosecution seek a trial on indictment of a federal offence. The plaintiffs argued that State laws that remove the committal, or its essential features, are incompatible with a "trial by jury" as required by s 80 and cannot therefore be picked up by s 68(1) of the Judiciary Act. 64In support of their submissions, the plaintiffs cited R v Murphy and Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75. The plaintiffs' submissions with respect to these decisions were as follows: i.In Murphy, the High Court considered the nature of the power exercised by a court during a committal process for the purposes of determining whether the offence in s 43 of the Crimes Act 1914 (Cth) of attempting to pervert the course of justice covered an attempt to pervert the course of committal proceedings. It was held by a unanimous High Court that "the course of justice" included a committal proceeding. ii. In the course of reaching that conclusion, the High Court explained the integral place of a committal proceeding within a trial process for an indictable offence: at 611-612, extracted at [56] above. iii. Thus, the committal proceeding is the trigger for the function served by the jury and, on that basis, was considered by the High Court to be incidental to an exercise of judicial power and could, consequently, be given to a State Court exercising federal jurisdiction. iv.However, not only is it the trigger, it is an essential part of the trial by jury, or, at most, a precondition to the exercise of the jury's function that forms part of the constitutional requirement of "trial by jury". This proposition is said to be supported by the statements of the Court in Murphy at 616-617 (extracted at [54] above) and 618 that: "If we accept the applicant's contention that the exercise of the judicial power begins with the presentation of an indictment for an indictable offence, the course of justice in relation to the actual exercise of that power which takes place thereafter necessarily comprehends the committal proceedings which are preliminary to indictment and trial." v.Barwick CJ made similar comments in Ammann v Wegener [1972] HCA 58; (1972) 129 CLR 415 at 421-2: "It was properly pointed out by the Solicitor-General for South Australia that as at the date of the enactment of the Constitution each of the colonies, following the legislative pattern of the United Kingdom, had provision for the creation of justices of the peace, some of whom were stipendiary or special magistrates, with jurisdiction to receive complaints of or informations as to the commission of offences including offences triable on indictment and upon receipt of such a complaint or information to conduct a preliminary examination to ascertain whether there was sufficient evidentiary material on which the person, against whom the complaint was made or the information laid, should be committed to stand his trial for the alleged offence. For the purpose of such an inquiry witnesses were to be examined, for whose attendance to testify such magistrates had power to issue subpoenas. It had long been established before 1900 that such preliminary examination was not a judicial proceeding. But, except in the case of an ex officio indictment laid by the "Attorney-General, such a preliminary inquiry with a resultant committal for trial was an indispensable step in the enforcement of the criminal law by the trial of offenders in the courts of law." vi. Thus, except for ex officio indictments by the Attorney General, the "trial by jury" contemplated by s 80 (that is, the exercise of Commonwealth judicial power by the jury to determine guilt) "necessarily comprehends" the committal proceeding, and "it is inconceivable" that a s 80 jury trial would proceed without a committal. The committal was an "indispensable step" in the trial process. In other words, it is a necessary implication from the expression "trial by jury" that the function of the jury would be conditioned by a committal proceeding, as an essential part of that trial. vii. Once it is accepted that a committal is an integral part of, or a precondition for, a s 80 jury trial, then it necessarily follows that the essential features of a committal are also protected by s 80. To identify the essential features, as the Court did in Cheatle, regard must first be had to the common law institution of a committal as existing at 1900. However, as the inessential common law features can be altered by legislation, it is necessary to apply a functional approach to identify essential characteristics, as the High Court has done in cases starting with Brownlee. x. In this respect, the plaintiffs refer to the High Court's decision in Barton v The Queen. That case considered the question of whether a failure to have a committal allowed a trial court to exercise its discretion to stay the proceedings for unfairness. On that question, the Court was evenly divided: Gibbs ACJ, Mason and Aickin JJ considered that there would be unfairness; Stephen, Murphy and Wilson JJ considered that there would not be. The dissenting views would have to be read with some caution given the later case of Murphy, identifying the committal as a precondition for an exercise of judicial power by the jury. But, in any event, what is presently important is the commentary by their Honours in relation to the nature of committals. xi. In a joint judgment, Gibbs ACJ and Mason J (Aickin J agreeing) said at 99: "...committal proceedings constitute an important element in the protection which the criminal process gives to an accused person. ... Lord Devlin in The Criminal Prosecution in England was able to describe committal proceedings as 'an essential safeguard against wanton or misconceived prosecutions.' This comment reflects the nature of committal proceedings and the protection which they give to 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 that the magistrate will not commit." xii. Their Honours then responded to a submission that the committal could be replaced by the supply of particulars and the delivery of copies of briefs of evidence, and continued (at 99): "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; (3) the opportunity of calling evidence in rebuttal; and (4) the possibility that the magistrate will hold that there is no prima facie case or that the evidence is insufficient to put him on trial or that there is no strong or probably presumption of guilt. A deprivation of these advantages is, as the judges observed in Fazzari and as Fox J noted in Kent, a serious departure from the ordinary course of criminal justice." xiii. Their Honours acknowledged the Attorney General's power to proceed by ex officio indictment, but said that it was "a rare exception to the general rule" (at 99). xiv.It can be seen, then, that committals play an essential role in the "trial by jury" required by s 80. The jury's function is to exercise the judicial power of the Commonwealth, and, as Griffith CJ first recognised in Huddart, Parker and Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330 at 357, the judicial power of the Commonwealth means "the power which every sovereign authority must of necessity have to decide controversies ... between itself and its subjects". Whether that sovereign power, to be exercised by the jury, should be engaged necessarily depends upon the committal process. In other words, it is the committal that identifies whether there is a dispute (ie, a matter) between the Crown and its subject: it is an essential precondition. xv. With that function of the committal in mind, the plaintiffs made the following submissions about the essential features of a committal process protected by s 80 of the Constitution: 1.The committal process cannot provide a basis for the engagement of Commonwealth judicial power unless there is a real and effective opportunity for the accused to cross-examine the prosecution's witnesses. Without a real and effective opportunity to cross-examine, the evidence cannot be properly tested and the issues cannot be fully ventilated, and the committal process will provide an insufficient basis for the Magistrate to make an informed determination as to whether the judicial power of the Commonwealth should be engaged. The purpose of the committal will be frustrated and will fail to fulfil its essential role of providing a precondition for the jury's exercise of judicial power. 2. To the extent that the committal can be seen as an essential component of the trial process to protect the accused from "wanton or misconceived prosecutions", for similar reasons to those already advanced, the purpose of the committal will be frustrated if the accused is not allowed a real and effective opportunity to cross-examine. The consequence of a committal order is that the accused will be committed to a correctional centre until tried or otherwise released by operation of law (Criminal Procedure Act 1986) s 109(1)) (that is, the accused may be deprived of his or her liberty). That consequence requires that the committal process give the accused a real and effective opportunity to challenge the evidence. Otherwise, the committal cannot be seen as an effective part of the trial by jury, let alone as a precondition for the jury's exercise of judicial power. 3.The committal can only be seen as incidental to the exercise of the judicial power by the jury if it properly performs its function. A clear example of that not occurring can be found in the decision in Re Grinter; Ex parte Hall [2004] WASCA 79; (2004) 28 WAR 427, where the process for examining a witness departed so far from the traditional committal process that it became disconnected from the function of the jury. The failure to allow a real and effective opportunity to examine the prosecution witnesses breaks the essential nexus between the committal proceeding and the jury's function. Moreover, it no longer provides a proper opportunity for the Magistrate to determine whether the judicial power of the Commonwealth should be engaged. xvi. Against the background of these "essential features", the plaintiffs made the following further submissions on the impact of the "paper committal" provisions in the Criminal Procedure Act on the essential features of a committal process protected by s 80 of the Constitution: 1.First, s 91 of the Criminal Procedure Act effectively places the onus on the accused to satisfy the magistrate to the requisite standard for a direction to be made. 2.Given that a direction may not be given if the written statement has already been admitted into evidence, the practical effect will be that, in the absence of agreement between the parties, a direction under s 91 will usually be made (if at all) on the application of the defendant. 3.Given the nature of the committal process as protecting the accused from "wanton or misconceived prosecutions", the placing of the onus on the accused to show that a direction should be made is inconsistent with a real and effective opportunity for the accused to test the evidence. 4.Moreover, as indicated, s 91(3A) denies the magistrate the power to make a direction under s 91(1) for the reasons set out in s 91(3), once the statement has been taken into evidence. 5.Even if the placing of the onus on the accused under s 91 is consistent with a real and effective opportunity to challenge the evidence, the bar is set too high. Not only must the magistrate be satisfied that it is "in the interests of justice" for the witness to attend to give oral evidence, but there must also be "substantial reasons" for the direction to be made (s 91(3)). The requirement of "substantial reasons" must necessarily impose a higher threshold than that required by the "interests of justice". This elevated standard denies (i) the magistrate a discretion to require a witness to give oral evidence where it is merely "in the interests of justice" to do so, and (ii) a real and effective opportunity for the accused to cross-examine the witness. 9.Even if substantial reasons can be established by the accused for a direction to be made, the cross-examination of the witness is limited to the matters that formed the basis of the direction (s 91(7)). "Substantial reasons" have to be shown for the witness to be cross-examined on other matters. Again, this limits (i) the magistrate's discretion to require a witness to give oral evidence even where it is "in the interests of justice" to do so, and (ii) the real and effective opportunity for the accused to cross-examine the witness on these other matters. 12.Lastly, Division 4 of the Criminal Procedure Act does not place the same limitations on the taking of defence evidence. The fact that similar constraints are not placed on the magistrate when taking defence evidence, or upon the prosecution when testing any defence evidence, highlights just how far "proper committals" have diverged from the essential features of the committals envisaged by s 80. xvii. In summary, for all of these reasons, the "paper committal" provisions (including ss 74 and 91) for the taking of the prosecution evidence undermine the place of the committal within the "trial by jury" process protected by s 80. They diminish the opportunity for the accused and the magistrate to challenge the strength of the evidence. Consequently, the committal does not provide a sufficient basis for the magistrate to make an informed determination as to whether to engage the judicial power of the Commonwealth through an exercise of power by the jury. 65The plaintiffs concluded that the requirement of a "trial by jury" necessarily implies the existence of a committal that provides a level playing field between the prosecutor and the accused, which in turn requires a real and effective opportunity to challenge the evidence. According to the plaintiffs, the relevant provisions of the Criminal Procedure Act do not satisfy this requirement, and they cannot therefore be picked up by s 68 of the Judiciary Act 1903 (Cth) and applied to committals for federal offences. 66It was further submitted by the plaintiffs that s 68(1) of the Judiciary Act 1903 (Cth) cannot pick up a State law which the Commonwealth Parliament could not have enacted directly. It was submitted that the consequence was that the proper analysis proceeds on the foundation that the committal provisions in question are federal provisions. It was submitted that the Parliament cannot authorise "or require a court exercising the judicial power to do so in a manner which is inconsistent with its nature": Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173 at [146] (Gummow J); see also Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27. 67The plaintiffs submitted that a number of propositions can be deduced from these principles: a.A provision that impairs the judicial function of finding facts, even if it appears in the form of a rule of evidence, will constitute an impermissible interference or usurpation of judicial power: Williamson v Ah On [1926] HCA 46; (1926) 39 CLR 95 at 108. b.A provision that purports to reverse an onus of proof, but does not allow a reasonable approach to the assessment of the kind of evidence to which it relates, will be invalid: Nicholas v The Queen at [24] (Brennan CJ). c.The judicial power "involves the application of the relevant law to facts as found in proceedings conducted in accordance with the judicial process. And that requires the parties be given an opportunity to present their evidence and to challenge the evidence led against them": Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 at [56]. d.While this requirement of the judicial process is applicable to a court's exercise of judicial power, it is equally applicable to its exercise of non-judicial power where that is incidental to the exercise of judicial power. e.Because "[a] long course of development produced a conception of the judicial process which placed the court in the position of a detached tribunal entertaining and determining civil and criminal pleas bright before it" (R v Federal Court of Bankruptcy; Ex parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556 at 588), a court exercising federal jurisdiction must be impartial. 68The plaintiffs submitted that many of the reasons put forward above for an incompatibility with s 80 of the Constitution similarly operate in support of the following submissions: a.First, s 91 (when read with s 74) is not a rule of evidence or a reversal of onus provision. Properly construed, it denies the accused a real and effective opportunity to challenge the evidence of a witness. b.Secondly, since the magistrate is denied the power to make a direction under s 91(1) once the statement has been taken into evidence, the magistrate is denied any discretion: (i) to protect the judicial process by requiring the witness to attend the committal to give oral evidence; and (ii)to ensure a real and effective opportunity for the accused to cross-examine the witness, if the circumstances arising at the committal require it. c.Thirdly, even if the placing of the onus on the accused is consistent with a real and effective opportunity to challenge the evidence, the bar is set too high. Not only must the accused show that it is in the "interests of justice" for a witness to be called, the accused has to show "substantial reasons". This is not a "reasonable approach" to enable the accused to test the evidence of the witness. d.Fourthly, even if substantial reasons can be established by the accused, the cross-examination of the witness is limited to the matters that formed the basis of the direction. Substantial reasons have to be shown for the witness to be cross-examined on other matters. Again, this is not a "reasonable approach" to allow the accused to test the evidence of the witness. e.Fifthly, the fact that similar constraints are not placed on the taking of the prosecution evidence results in a distorted picture being presented to the magistrate. Public perception of the impartiality of the proceedings must necessarily be affected. 69The plaintiffs further submitted that, although stated in the context of a Kable argument, certain comments by French CJ in International Finance Trust Company Limited v NSW Crime Commission [2009] HCA 49; (2009) 240 CLR 319 are of assistance. That case involved a successful Kable challenge to a power given to the NSW Supreme Court to issue, on an ex parte basis, a restraining order against the property of a person suspected of being involved in serious crime. In the course of finding that the provision breached the Chapter III constitutional requirements, his Honour said at [54]: "Procedural fairness or natural justice lies at the heart of the judicial function. In the federal constitutional context, it is an incident of the judicial power exercised pursuant to Ch III of the Constitution. It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it. According to the circumstances, the content of the requirements of procedural fairness may vary. When an ex parte application for interlocutory relief is made the court, in the ordinary course, has a discretion whether or not to hear the application without notice to the party to be affected. In exercising that discretion it will have regard to the legitimate interests of the moving party which have to be protected, whether there is likely to be irrevocable damage to the interests of the affected party if the order is made, and what provision can be made for the affected party to be heard to have the order discharged or varied after it has been made." 70On the strength of these comments, the plaintiffs submitted that the interest to be protected in the committal proceeding (that is, the liberty of the accused), as well as the right to fair trial, justifies an elevated standard of procedural fairness that requires a level playing field between the prosecutor and the accused, and a real and effective opportunity for the accused to challenge the evidence to be adduced. 71In the plaintiffs' submission, the "paper committal" provisions of the Criminal Procedure Act (including ss 74 and 91) contravene those requirements. Accordingly, the plaintiffs contend that s 68(1) of the Judiciary Act 1903 (Cth) cannot operate to pick up those provisions in federal jurisdiction. 72Finally, the plaintiffs submitted that s 68 of the Judiciary Act does not pick up s 91 for a distinct reason. It was submitted that the jurisdiction under s 68(2) is qualified in that it is "subject to this section and to section 80 of the Constitution". Section 68, both in sub-secs (1) and (2), lists the categories of applicable laws of the State or Territory. Section 68(2)(b) refers to "examination and commitment for trial on indictment". It was submitted that this section should be interpreted as a reference only to the examination of an accused and, accordingly, a law which relates to an examination of witnesses is not covered by s 68 and therefore would not be picked up by s 68.

The defendants' and Attorney General's submissions 73The defendants' and Attorney General's submissions collectively denied that the "paper committal" provisions of the Criminal Procedure Act are incompatible with s 80 of the Constitution. It is necessary to consider these submissions in some detail. 74The Attorney General emphasised that, notwithstanding the close relationship which committal proceedings have to an ultimate trial, the High Court in Murphy affirmed that the exercise of the committal function is administrative in nature, though a magistrate acts "judicially" in the sense that the magistrate must act justly and fairly: Cox v Coleridge (1822) 1 B&C 37; Huddart Parker and Co Pty Ltd v Moorehead at 355-8, 378; Ammann v Wegener at 435. The Attorney General further submitted that Murphy confirms the committal power to be sufficiently incidental to the exercise of federal judicial power that the functions in relation to committing federal offenders for trial may validly be conferred on State judicial officers. 75In Murphy, the Court said at 616: "Even though they are properly to be regarded as non-judicial in character, committal proceedings themselves traditionally constitute the first step in the curial process, possibly culminating in the presentation of the indictment and trial by jury." 76The Attorney General observed that the principle that committal proceedings are administrative in character has been more recently affirmed in Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1; Lamb v Moss (1983) 76 FLR 296 at 320; and O'Meara v The Queen [2001] NSWCCA 340; (2001) 124 A Crim R 493. 77In Grassby, Dawson J said at 11: "It has consistently been held that committal proceedings do not constitute a judicial inquiry but are conducted in the exercise of an executive or ministerial function." 78The purposes of a committal hearing were discussed in Barton v The Queen, where Wilson J said at 112: "The committal proceeding is a procedure designed to facilitate the administration of criminal justice. It serves this purpose in two ways: in the first place, it marshals the evidence which is tendered on behalf of the informant in deposition form, a form which enables it to be perpetuated and be available for use at the trial in the event of the witness being dead or otherwise unavailable; in the second place, it requires the magistrate to be satisfied that the evidence established a prima facie case before the accused person is committed to stand trial." 79On the basis of these authorities, the defendants and the Attorney General submitted that the principal purpose of committal proceedings is to ensure that an accused is not brought to trial unless a prima facie case can be shown (Barton at 99). The defendants and the Attorney General acknowledge that the importance of committal to a criminal defendant cannot be underestimated. However, they submitted that although committal proceedings may be thought of as a "trial run" for a hearing, courts have rejected the notion that the purpose of a committal is to provide a "dress rehearsal" so that the defence can try out its cross-examination of prosecution witnesses in preparation for trial: Moss v Brown [1979] 1 NSWLR 114 at 125-6 cited by Lockhart J in Fermia v Hand (1984) 1 FCR 336 at 339; Re van Beelen (1974) 9 SASR 163; Epping and Harlow Justices; Ex parte Massaro [1973] QB 433. 80The defendants and the Attorney General were at pains to emphasise that committal proceedings are a creature of statute. The genesis and history of committal proceedings was discussed in Grassby. In DPP (Cth) v Bayly (1994) 63 SASR 97, Olsson J said at 114 that "the committal process is of relatively recent genesis and is, in fact, a creature of statute". Although the position was different in other jurisdictions, there was no provision for the taking of evidence of witnesses in committal proceedings otherwise than by oral evidence until 1983: Kant v Director of Public Prosecutions (1994) 34 NSWLR 216 at 218 (Gleeson CJ). In 1983, the Justices Act 1902 (NSW) was amended to make provision for "paper committals", although provision remained for the taking of evidence orally. Further amendments were made in 1987 seeking to secure the more extensive use of written statements. Sections 48E and 48EA of the Act, as it stood in 1987, were in similar terms to ss 91 and 93 of the Criminal Procedure Act today. The purpose of the provisions was to shorten the length of committal proceedings in such a way as to strike an appropriate balance between the rights of an accused person and the need to reduce the trauma that court proceedings impose on the victims of crime: Kant at 225; DPP (NSW) v O'Conner [2006] NSWSC 458; (2006) 181 A Crim R 294 at [51] (Johnson J). 81The defendants and the Attorney General accepted that State laws concerning committal procedures do not apply of their own force with respect to prosecutions of offences against Commonwealth law. Rather, the provisions are picked up and applied by s 68 of the Judiciary Act as federal laws: Putland v The Queen [2004] HCA 8; (2004) 218 CLR 174; Lamb v Moss at 322. 82However, s 68 does not permit the terms of any State law to be altered when applied as a federal law. State laws must be applied according to their terms. 83The Attorney General submitted that s 91 is clearly incidental to the exercise of federal judicial power. Counsel for the Attorney General argued that the High Court determined in Murphy that the committal power is sufficiently incidental to the exercise of federal judicial power such that functions in relation to committal proceedings concerning federal offenders may be validly conferred on State judicial officers. The Attorney General reasoned that s 91, being a law with respect to the evidence to be tendered in committal proceedings, must also be incidental to the exercise of federal judicial power. 84The Attorney General further submitted that the decision in Re Grinter is clearly distinguishable and does not support the plaintiffs' argument that s 68 of the Judiciary Act does not pick up s 91. Counsel for the Attorney General noted that Re Grinter concerned the applicability of s 102 of the Justices Act 1902 (WA), which provided for a procedure whereby orders could be made requiring the compulsory examination of a witness while committal proceedings were pending. Section 102(2) further provided that the defendant was not a party to this examination, could not cross-examine the witness and was not permitted to address the justices on the examination. The Full Court emphasised that s 102 could only be "picked up" by s 68 of the Judiciary Act if the section was "incidental to a judicial function": at [63] (Malcolm CJ), [205] (McKechnie J). The Court also noted that the procedure for determining whether a person should be committed for trial was "clearly" related to the judicial function: at [63] (Malcolm CJ), [205] (McKechnie J). 85However, their Honours found that s 102 had "nothing to do with the examination and commitment of the accused ... It is not part of any process of committal": at [64] (Malcolm CJ), [124] (Steytler J). The evidence gathered pursuant to the s 102 orders was never intended to be used in committal proceedings; rather, its purpose was simply to gain evidence for a subsequent trial: at [65] (Malcolm CJ), [124] (Steytler J). For this reason, the Court concluded that the "separate and distinct administrative investigative function" provided for in s 102 was "not an integral or any part of the examination and committal of the defendant with the consequence that s 102 was not 'picked up'": at [65] (Malcolm CJ), [127] (Steytler J), [206] (McKechnie J). 86According to the Attorney General, the present case is clearly distinguishable from the situation in Re Grinter. This was said to be because s 91, as a law with respect to the evidence to be tendered in committal proceedings, as distinct from a subsequent trial, must also be incidental to the exercise of federal judicial power. 87Section 68(1) of the Judiciary Act applies State laws respecting the procedure for committals "so far as they are applicable". In Putland, Gleeson CJ commented at [7]: "Although there is not in s 68, as there is in s 79 of the Judiciary Act, an express qualification to the operation of the provision by the use of the words 'except as otherwise provided by the Constitution or the laws of the Commonwealth', in the context of a problem such as the present there is little, if any, functional difference between the two forms of qualification." 88Accordingly, s 91 will not be "picked up" by s 68 of the Judiciary Act if its application in a committal for a Commonwealth offence is contrary to the Constitution or is otherwise incompatible with the status of the Local Court as a repository of federal jurisdiction: Kable v Director of Public Prosecutions [1996] HCA 24; (1996) 189 CLR 51. 89The Attorney General submitted that on no view could it be said that s 91 is incompatible with the exercise of federal judicial power or otherwise contrary to the Constitution. Counsel for the Attorney General submitted that this is so because there is no constitutional right to a "full common law committal". I consider that proposition later in this judgment.

Conclusion on Submission 4 90There are difficulties with the plaintiffs' submissions. They have conceded that a committal hearing is a creature of statute, and therefore susceptible to legislative change. Moreover, it cannot be argued, as the plaintiffs' submissions suggested, that a full committal hearing with all evidence being orally presented was required by the common law at Federation. The current form of committal proceedings in NSW are of relatively recent origin and are a creature of statute. Gleeson CJ said in Kant at 225 that there has never been a universal, fixed standard for the taking of evidence in committal proceedings. His Honour said at 225: "Committal proceedings, as they have been conducted in New South Wales in recent decades, have been somewhat different from corresponding proceedings in other jurisdictions. A Discussion Paper on Reforms to the Criminal Justice System, published by the Attorney-General's Department in May 1989, noted that in New Zealand a decision as to whether a charge of an indictable offence should proceed to trial is made after a purely paper committal without hearing any oral evidence. In Scotland there never have been committal proceedings. Following the arrest of an accused person, a decision as to whether there will be a trial is made by the Procurator Fiscal, the decision being made on the papers. In England there can be either paper committals or committals after an oral hearing, but the Discussion Paper said that the great majority of committals are dealt with as paper committals, and fewer than 8 per cent are conducted on the basis of oral evidence. This is hardly consistent with the notion that there is a natural right in a person accused of an indictable offence to cross-examine the alleged victim twice, that is to say, once at a committal, and again at a trial." 91To similar effect are the observations of Murphy J in Barton at 108: "It does seem a little late in the day to proclaim the indispensability of the oral hearing. In each jurisdiction except New South Wales it is possible for a defendant to be committed for trial on the basis of written statements. In four States this can be achieved without magisterial consideration of the sufficiency of evidence." 92In DPP v Bayly, Olsson J rejected the proposition that Chapter III of the Constitution requires a full and unfettered committal hearing. His Honour said at 115: "I do not perceive anything in Barton which established 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 focussed on the entitlement of the accused to which ws the normal contemporary process under the statute; and the unfairness which flowed from a failure to adopt such a course." (emphasis in original) 93Section 91 does not abolish the requirement for a committal hearing. It remains as the vehicle to ensure that an accused will not be brought to trial unless there is sufficient evidence to warrant his or her being tried for the relevant offence. All that s 91 requires a defendant to do is show that there are "substantial reasons" for requiring a witness who has made a statement to give oral evidence in the committal proceedings. "Substantial reasons" will be found where cross-examination may result in the discharge of a defendant, where cross-examination is likely to substantially undermine the credit of a witness, or where cross-examination is necessary to avoid the defendant being taken by surprise at the trial. Where it is necessary for a particular witness to be cross-examined so that any ultimate trial is fair, s 91 will require that witness to be called. 94Accordingly, in circumstances where the committal process provided by legislation is adequate to protect the interests of an accused, as here, I see no reason for concluding that any constitutional right to a fair trial is infringed merely because the legislation does not provide an unfettered right to cross-examine any witness. 95Section 91 does not direct the court to reach a particular outcome - either in the committal proceedings themselves, or on the question of whether the witness should be called. Nor does s 91 require the court to act in a manner which is incompatible with the exercise of the judicial power of the Commonwealth. Rather, s 91 requires the magistrate to balance the interests of the accused against considerations such as the efficiency of committal proceedings and the need to avoid unnecessary delay in criminal prosecutions. The principles governing the application of s 91, as identified in cases such as Sim v Corbett [2006] NSWSC 665 and Qaumi v DPP (NSW) [2008] NSWSC 675; (2008) 186 A Crim R 72, require that the power in s 91 be exercised in a judicial manner. In those circumstances, it cannot be said that the independence, or appearance of independence, of the court exercising federal jurisdiction is in any way compromised by s 91: see also South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1 at [75] (French CJ), [142] (Hayne J), [436] (Crennan and Bell JJ), [480] (Kiefel J). 96I also reject the plaintiffs' submission that s 68 of the Judiciary Act cannot pick up a State law relating to the examination of witnesses, as distinct from an accused. Apart from the fact that the language of "examination and commitment" is a reflection of the language used at Federation (when a committal proceeding was seen as an examination process involving the examination of the accused and of any other person called at the committal proceedings), the matter is made plain by the reference in sub-sec 2 to "examination and commitment for trial on indictment". The sub-section's reach extends to commitment for trial on indictment. It could hardly be otherwise. It would make no sense to have provided that a State or Territory is confined to laws contemplating the examination of an accused in the absence of any common law procedure for committal proceedings. In the ordinary course, witnesses other than the accused will be called at a committal proceeding, and sub-sec (2) must therefore be taken to extend to laws relating to their examination as well.

Orders 97For these reasons I order that the summons be dismissed. I order the plaintiffs to pay the defendants' costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 August 2012

Justices Act 1902(NSW)

Constitution Justices Act 1902(WA)

Justices Act 1902(WA)

At a glance

Court

Decision date

Before

Source

Judgment (16 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (58)