Andrews v Ardler
[2012] NSWSC 845
•25 July 2012
Supreme Court
New South Wales
Medium Neutral Citation: Andrews v Ardler [2012] NSWSC 845 Hearing dates: 13 June 2012 Decision date: 25 July 2012 Jurisdiction: Common Law Before: Button J Decision: (1) Summons dismissed.
(2) Defendants to have liberty to apply until 4pm, 1 August 2012, for an order as to costs.
Catchwords: ADMINISTRATIVE LAW - declaratory relief - applicability to Local Court summary proceedings - discretionary nature of relief
CRIMINAL LAW - honest and reasonable mistake of fact - applicability to offences under Fisheries Management Act 1994 - mistaken belief in native title not mistake of factLegislation Cited: Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Criminal Procedure Act 1986
Evidence Act 1995
Fisheries Management Act 1994
Law Enforcement (Controlled Operations) Act 1997
Native Title Act 1993 (Cth)Cases Cited: CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440
Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120
He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 423
Hill v Green [1999] NSWCA 477; (1999) 48 NSWLR 161
Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493
Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536
Rozenes v Beljajev (1994) 126 ALR 481
R v Iorlano; Ex parte Attorney-General (Cth) [1983] HCA 43; (1983) 151 CLR 678
R v Walker (1994) 35 NSWLR 384
R v Wampfler (1987) 11 NSWLR 541
Salter v Director of Public Prosecutions (NSW) [2009] NSWCA 357; (2009) 75 NSWLR 392
Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1
Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317
University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1
Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373Texts Cited: Paul Fairall and Stanley Yeo, Criminal Defences in Australia, 4th ed (2005) LexisNexis Butterworths
J D Heydon, Cross on Evidence, 8th ed (2010) LexisNexis ButterworthsCategory: Principal judgment Parties: Anthony Hugh Andrews, Manager Special Operations, Fisheries Compliance, NSW Department of Trade and Investment, Regional Infrastructure (plaintiff)
Anthony Wayne Ardler (first defendant)
Joseph James Brown (second defendant)Representation: Counsel:
J Renwick SC, G Mahony (plaintiff)
J Waters (defendant)
Solicitors:
Crown Solicitor's Office (plaintiff)
Robert Powrie (defendant)
File Number(s): 2011/412191
Judgment
Introduction
By summons of 22 December 2011, the plaintiff sought the following relief:
"1. An order pursuant to s. 58(1) of the Crimes (Appeal and Review) Act 2001 granting leave to appeal from the pre-trial order of Dr G.C. Fleming, Magistrate, given at the Nowra Local Court on 12 December 2011;
2. An order pursuant to s. 51(6) of the Supreme Court Act 1970 that these proceedings be removed into the Court of Appeal;
3. An order pursuant to s 59(2)(a) of the Crimes (Local Courts Appeal and Review) Act 2001 setting aside the pre-trial order; or in the alternative:
4. A declaration that pursuant to s. 75 of the Supreme Court Act 1970 that [sic] Dr G.C. Fleming, Magistrate erred in law in ruling that the defence of honest and reasonable mistake of fact (the fact being the existence of native title) is a defence available to the defendants at law where the defendants seek to be exonerated from any criminal liability for alleged breaches of ss 14(2), 16(1) and 18(2) of the Fisheries Management Act 1994, based upon s 211 of the Native Title Act 1993 (Cth).
5. An order that the matters be remitted to the Magistrate to be dealt with according to law."
Background
The defendants are two Aboriginal men. By way of six Court Attendance Notices all dated 22 June 2010, they are each charged with three criminal offences against the Fisheries Management Act 1994 ("the Act"). The offence creating provisions are s 14(2), s 16(1) and s 18(2).
In short, the defendants are accused of committing fishing offences at Jervis Bay, NSW. The plaintiff is the prosecutor in the proceedings.
The matters were listed for hearing in Nowra Local Court on 12 December 2011 before Magistrate G C Fleming. Before that date, there had been some contact between the legal representatives of the parties. Counsel for the defendants (who also appeared for them in this Court) had indicated that the defendants would be relying on native title in the proceedings. As a result of that, senior counsel for the prosecution (who also appeared in this Court) prepared a document seeking a number of rulings as to matters of law that could arise in the hearing. That was done purportedly pursuant to s 139 of the Criminal Procedure Act 1986. I will return to the correctness of that procedure later in this judgment. That document sought to have the Magistrate answer five questions of law and procedure (and one question as to the way forward once those questions were answered).
Of indirect relevance to these proceedings are Questions One and Two. They were as follows:
"Question 1.
Is s. 211 of the NTA capable of applying to s. 16 of the FMA?
Question 2.
Does the prosecutor or the accused bear first the legal and second the evidentiary onus of establishing that s. 211 of the NTA applies, and to what evidential standard?"
In answering those questions, to state the position very succinctly, her Honour stated that she considered that s 211 of the Native Title Act 1993 (Cth) could apply to the offences under consideration, thereby relieving the defendants of any criminal liability. Furthermore, her Honour was of the view that it was incumbent upon the defendants to establish on the balance of probabilities that native title did so operate.
Of direct relevance to these proceedings is Question Four:
"In this trial, is the defence of honest and reasonable mistake of fact a defense [sic] available at law and if so, what must be shown, by which party, and to what standard?"
On the same day, the Magistrate answered that question. Because what was said on that day with regard to Question Four is reasonably short, I will set it out in its totality:
"I am going to move to question 4 and I will come back. Question 4 is whether or not the defence of honest and reasonable mistake of fact is available and two subsidiary questions: what must be show[n] by what party and to what standard. I have heard the submissions. I am very familiar with the authority of Proudman v Dayman. I have also had a look at the Act and the relevant offence provisions. I am not satisfied there is any reason why an honest and reasonable mistake of fact defence should not be available. There is nothing in the submissions that have been put to me that would convince me that it is not available.
I accept that there are some difficulties logistically, in terms of the way that defence and the natural course of the evidence will flow. I do not accept that the duality of the Commonwealth and State provisions, in any way, undermines the availability of honest and reasonable mistake of fact. I am alerted to the difficulties that are put to me by the prosecution as to how that particularly should apply. At the end of the day, the onus is going to be on the defendant to prove that defence. That will be [a] matter of the evidence. It will be a matter of addressing matters that do come in the course of the evidence and then can be tested in the evidence. I do not believe that it requires that there be any greater particularity, as a matter of notice, that needs to be provided in relation to that defence. I accept - Mr Waters has put to me - that it is a matter that has been determined on the facts of each case, as the evidence falls, and as the evidence is tested." (emphasis added)
After the five questions were answered, the parties sought time to consider their positions. The following day, 13 December 2011, counsel for the plaintiff said:
"The position is this, your Honour as foreshadowed yesterday, the prosecution is seeking to review one or more of the adverse answers. It may be, depending on legal aid funding, the defendant does the same in relation to its interests. On my instructions, we'll bring those proceedings in the Supreme Court, I expect, this week. We'll seek to have them dealt with expeditiously there. Our joint application therefore now is for this matter to be adjourned for mention, say, in March, with liberty to apply. So if, for example, if we find out that the matter's going to be listed for hearing in the Supreme Court on such and such a date we can let the Court know. If you require us to attend for the mention we can, otherwise it may be possible to further adjourn it. Then, just through the shopping list of other things, your Honour, before we perhaps fix on a date- -" (emphasis added).
Her Honour was not adverse to that application, but also wished to supplement what her Honour had said the day before on the topics raised by Question Four. Again, what her Honour said was not lengthy, and I will set it out in its entirety:
"If I can just briefly return to question 4 where I gave brief reasons yesterday. I just want that put a little bit more clarity around those reasons. As I said, I understand and I accept, that this will not change the position we are in today. The question was, in the trial, whether the defence of honest and reasonable mistake of fact is available at law; and, if so, what must be shown by which party and to what standard.
In considering that question yesterday, as to the first part, whether the defence of honest and reasonable mistake of fact is a defence available at law; my answer was, yes, it was. I was referred obviously to the leading authority of Proudman v Dayman, also to the matter of Dowling v Bowie, that were with the materials that were provided to me. I am familiar with and read those authorities and I found that it was applicable, and in my view, as a general rule, it is applicable. The question is whether it is excluded; and I was directed to, in submissions, matters in those decisions[.]
It can of course be excluded by words, context, subject matter, or by the general nature of the proceedings for the particular offence. I am not satisfied that for these particular offences it is excluded, nor that they are offences ultimately of strict liability turning only on the proof of the matters that were related to in submissions.
As to the mistake of fact, the question was if so, what must be shown. It was put to me by the defendant that mistake of fact would of course be, in this particular circumstance, a mistaken belief in native title rights. The question is what would need to be shown by which party, exactly what facts will need to be shown will depend upon the exact nature of the native title claim, what each defendant asserts to have believed to found the mistake. It may be that some facts would not be in dispute, Aboriginality for example. It may be that other facts in relation to the proof of native title such as connection to land, traditional use and custom, may indeed in each individual case be the facts to which the honest and reasonable mistake attaches.
In terms of the onus; the onus is on the defendant, in my view, to establish on the balance of probabilities the honest and reasonable belief. That is an evidentiary onus. Having proved that on the balance of probabilities it will be a legal onus that shifts to the prosecution to negative, these being criminal proceedings, to the standard beyond reasonable doubt." (emphasis added)
The matter was then adjourned, and the summons that founds these proceedings was issued shortly thereafter.
It is noteworthy that neither party referred her Honour to Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493. I infer that that occurred because Question Four did not ask anything about the distinction between mistake of fact and mistake of law with respect to criminal liability.
Position of the plaintiff
This summary seeks to cover the submissions of the plaintiff in the summons, the written submissions in this Court, and the oral submissions made by senior counsel.
With regard to Prayer 2, that was not pressed.
With regard to Prayers 1 and 3, although they were not abandoned, senior counsel for the plaintiff did not seek to make any oral submissions in support of them. I inferred from the adoption of that course that the plaintiff accepted the written submissions of the defendants, to the effect that there were no orders, interlocutory or otherwise, that were amenable to an appeal pursuant to s 58 and s 59 of the Crimes (Appeal and Review) Act 2001.
However, senior counsel for the plaintiff pressed Prayer 4, and sought the declaration contained therein. He submitted that the rulings of the Magistrate revealed an error of law. He focussed in particular on the sentence in the first passage that I have extracted in which the Magistrate said "I do not accept that the duality of the Commonwealth and State provisions, in any way, undermines the availability of an honest and reasonable mistake of fact."
In the second passage extracted above, senior counsel for the plaintiff drew attention to the following: "[i]t was put to me by the defendant that mistake of fact would of course be, in this particular circumstance, a mistaken belief in native title rights". He submitted that the rest of that paragraph demonstrated an erroneous conflation of concepts of mistake of fact and mistake of law.
Senior counsel for the plaintiff explicitly conceded in this Court that the offences pursuant to which the defendants had been brought to the Local Court were strict liability offences, and therefore the "defence" of honest and reasonable mistake of fact was available. He did so whilst aware that there are statutory defences that exist in the Act attaching to the offences, they being true defences that cast the onus of proof on the balance of probabilities on a defendant, pursuant to s 141 of the Evidence Act 1995. Examples of such statutory defences are contained in s 14(3) and s 21 of the Act. But his contention was that the ruling of the Magistrate was erroneous as to how that "defence" of honest and reasonable mistake of fact would operate, and what its content would be. In particular, he submitted that it could not be correct that the subject of the honest and reasonable mistake of fact could be whether or not native title existed.
In support of that, he accepted that s 211 of the Native Title Act operates to suspend (to use the words of the High Court in Western Australia v The Commonwealth (Native Title Act Case) [1995] HCA 47; (1995) 183 CLR 373 at p 474) the operation of the offence creating provisions in the Act. In other words, senior counsel accepted, for the purposes of these proceedings, the correctness of the answer of her Honour to Questions One and Two. But he submitted that, if it had been the intention of either the State or Federal Parliament that the existence of native title could form the basis of honest and reasonable mistake of fact, then one or other of the Parliaments would have explicitly said so in one or other of the statutes.
Secondly, he submitted that it is anomalous for a defendant to bear the onus of satisfying the Magistrate that native title suspends the operation of the offence creating provisions on the balance of probabilities, and yet an honest and reasonable mistake on the part of the defendants about native title would need to be disproven beyond reasonable doubt by the prosecution.
Thirdly, senior counsel for the plaintiff submitted that a mistake as to the existence of native title is one of law, not fact.
Fourthly, he submitted that, in reading the rulings of the Magistrate, it would be artificial not to have regard to the discussion that preceded it. Properly construed and in context, he submitted, the two passages demonstrated error of law.
Senior counsel accepted that the making of a declaration by this Court about matters of law in criminal proceedings would be quite exceptional, and that the Courts have long warned against the fragmentation of such proceedings. In that regard, he referred to Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 and Rozenes v Beljajev (1994) 126 ALR 481. But he pointed to the fact that this summary hearing was unusual in its issues, that the Magistrate had agreed to provide advance rulings, that the proposed evidence in the defence cases seemingly would be very lengthy, that the proceedings had already been fragmented and delayed, and that there had been a joint application for an adjournment. He submitted that the high hurdle had been cleared.
Position of the defendants
Turning first to consideration of the answers to Questions One and Two, counsel for the defendants did not bind himself as to acceptance of their correctness before the Magistrate in future. However, they have not been the subject of proceedings on his part, and he was content for me to proceed on the assumption that the answers are correct.
Counsel for the defendants submitted that there had been no order made in the Local Court, merely rulings, or perhaps indications of how the Magistrate may approach the matter. He referred to the well-known case of Salter v Director of Prosecutions (NSW) [2009] NSWCA 357; (2009) 75 NSWLR 392 which demonstrates that, in proceedings such as these under the Crimes (Appeal and Review) Act, it is always necessary to identify with precision an order at first instance that is amenable to appeal. He submitted that he would not feel constrained from asking the Magistrate to revisit the questions dealt with by her Honour, and that senior counsel for the plaintiff could revisit the question, at the latest, if and when counsel for the defendants tendered evidence that senior counsel for the plaintiff submitted was not relevant to the "defence", and therefore inadmissible.
Counsel for the defendants submitted that the honest and reasonable mistake could pertain to native title, or, at the least, to the factual matters underpinning it. He emphasised that native title is established by way of evidence of facts.
He emphasised that no evidence whatsoever had been led or tendered in the hearing, so that the rulings of the Magistrate in the proceedings in this Court were prospective, and to a very large degree hypothetical. The exception to that proposition was that a notice pursuant to s 191 of the Evidence Act was tendered before her Honour, although seemingly not marked as an exhibit. In that document, most if not all of the elements of the offences were conceded. But nothing had been led about native title, or about the states of mind of the defendants that could found the "defence".
Counsel for the defendants submitted that I should exercise my discretion not to grant the declaration, even if I discerned error of law, and that I should let the summary hearing proceed in the usual way.
Decision
Legal background
Because it does seem to me that there was, with respect, a little confusion in the Local Court about honest and reasonable mistake of fact and its operation, it may be appropriate if I set out some of the legal background. A useful summary of the "defence" is to be found in Chapter Two of Paul Fairall and Stanley Yeo, Criminal Defences in Australia, 4th ed (2005) LexisNexis Butterworths. The following taxonomy of offences is founded on He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 423, as summarised in R v Wampfler (1987) 11 NSWLR 541 at p 546.
Most serious offences require proof of some sort of mental element. Common examples are intention, knowledge and recklessness. If a defendant has made a mistake of fact relevant to a requisite mental element, he or she may rely on that in order to demonstrate that the prosecution has failed to prove the mental element beyond reasonable doubt. So, for example, in a murder trial in which the accused is alleged to have killed the deceased with intent to kill or inflict grievous bodily harm by stabbing the deceased in the chest with a knife, it would be open to the accused to point to the fact that he or she believed that the knife was a plastic toy, and was merely playing when he or she pushed it into the chest of the deceased. Such a mistaken belief need not be reasonable. Indeed, even if it is quite unreasonable, it may nevertheless operate to exculpate the accused.
Offences of strict liability constitute the second category of offences. The seminal Australian case is Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536. These are offences with regard to which no mental element need be proven by the prosecution, but the "defence" of honest and reasonable mistake of fact is available. Once the accused points to "some evidence" of that "defence", it is incumbent upon the prosecution to disprove it beyond reasonable doubt. The prosecution will succeed if it proves beyond reasonable doubt either that the mistaken belief was not honestly held, or that the mistake was not a reasonable one. A well-known example of such an offence is that of dangerous driving occasioning death, contained in s 52A(1) of the Crimes Act 1900. For a discussion of how honest and reasonable mistake of fact operates with regard to the very similar predecessor of that offence, see Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572.
Because of the fact that the accused need only raise honest and reasonable mistake of fact and, then it must be disproven by the prosecution, it can be misleading to refer to it as a defence. Doing so can appear to equate it with a true defence, with regard to which an accused bears the onus of persuading the tribunal of fact on the balance of probabilities. A well-known example of a true defence is mental illness. In this judgment, I refer to honest and reasonable mistake of fact as a "defence", in order to draw that distinction.
Offences of absolutely liability are those which do not attract the "defence" of honest and reasonable mistake of fact, and constitute the third category of offences. In other words, once the physical elements of the offence are made out, the offence is proven. For an example of the Court of Criminal Appeal determining that a driving offence was an absolute liability offence, see R v Walker (1994) 35 NSWLR 384.
Determining whether a statutory offence is one of strict or absolute liability is a question of construction. For a recent example of the High Court determining whether a statutory offence is one of strict or absolute liability, see CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440.
The question may be asked: to what quality of evidence must the defendant point with regard to a "defence", in order to require the prosecution to disprove it beyond reasonable doubt? In answering that question, criminal lawyers usually adopt the shorthand of "some evidence", or "some reasonable evidence", of such a "defence".
In CTM v The Queen, the plurality did not go beyond using the well-known phrase "evidential burden" in discussing what the defendant must discharge. However, Hayne J did consider this question, and quoted at [179] from the judgment of Dawson J in He Kaw Teh v The Queen as follows:
"Questions of mistake need be considered at a criminal trial only if the issue is alive. As Dawson J pointed out in He Kaw Teh:
"[T]he burden of providing the necessary foundation in evidence will in most cases fall upon the accused. But it is not inconceivable that during the case for the prosecution sufficient evidence may be elicited by way of cross-examination or otherwise to establish honest and reasonable mistake or to cast sufficient doubt upon the prosecution case to entitle the accused to an acquittal. The governing principle must be that which applies generally in the criminal law. There is no onus upon the accused to prove honest and reasonable mistake upon the balance of probabilities. The prosecution must prove his guilt and the accused is not bound to establish his innocence. It is sufficient for him to raise a doubt about his guilt and this may be done, if the offence is not one of absolute liability, by raising the question of honest and reasonable mistake. If the prosecution at the end of the case has failed to dispel the doubt then the accused must be acquitted."" (footnotes omitted)
A more expansive definition of the evidential burden is contained in J D Heydon, Cross on Evidence, 8th ed (2010) LexisNexis Butterworths. There it is said at [9120], p 359:
"When the accused bears the evidential burden alone, it is only necessary for there to be such evidence as would, if believed and uncontradicted, induce a reasonable doubt in the mind of a reasonable jury as to whether the accused's version might not be true, for example as to whether the accused was provoked or in a state of automatism.
In the words of Lord Devlin, the evidence must be enough to 'suggest a reasonable possibility'. There must be some evidence, derived either from the prosecution or adduced by the defence; it is not enough to rely upon an out-of-court self-serving statement, and probably not enough to have equivocal evidence from which the jury is invited to draw a medical inference, itself contradicted by the evidence of a doctor." (footnotes omitted).
It follows from the foregoing, that if I had been asked Question Four, I would have answered it as follows:
Question Four: In this trial, is the defence of honest and reasonable mistake of fact a defence available at law?
Answer: In light of the concession of senior counsel for the plaintiff, yes.
Question Four: If so, what must be shown, by which party, and to what standard?
Answer: The defendant must point to some reasonable evidence of an honest and reasonable mistake of fact. Once the defendant has done so, it is incumbent upon the prosecution to disprove the "defence" beyond reasonable doubt.
It is important to note that the "defence" is restricted to honest and reasonable mistake of fact. A mistake of law will almost never operate to exculpate a defendant in a criminal matter: ignorance of the law is no excuse. Whilst it is notorious that it is not easy to draw a bright line between matters of fact and matters of law, the High Court has reasonably recently discussed the distinction between mistakes of fact and mistakes of law in the criminal setting: Ostrowksi v Palmer. In that case, as it happens also a fishing prosecution, a perfectly honest and reasonable mistake of law did not avail the defendant.
Legal error in the Local Court?
Turning to the two passages extracted in this judgment, I do not perceive error in the first of them. In particular, I do not see error in the sentence "I do not accept that the duality of the Commonwealth and State provisions, in any way, undermines the availability of honest and reasonable mistake of fact". I respectfully agree with the Magistrate that the fact this prosecution may involve an interaction between the Act and the Native Title Act does not somehow restrict the operation of the "defence".
As for the second extracted passage, I do respectfully think that it was an error to say "[i]n terms of the onus; the onus is on the defendant, in my view, to establish on the balance of probabilities the honest and reasonable belief", and what follows after that. As I have said above, in truth the onus is on the defendant to point to some evidence of the "defence", and then the onus shifts to the prosecution. For an example of a case in which it was held that the accused had not discharged the evidential onus with regard to honest and reasonable mistake of fact, see CTM v R. It is not incumbent upon a defendant to prove the "defence" on the balance of probabilities as a preliminary matter. But that is not an error of which the plaintiff complained in these proceedings. That is not surprising, as it was an error that was not adverse to the plaintiff.
The sentence "it was put to me by the defendant that mistake of fact would of course be, in this particular circumstance, a mistaken belief in native title rights" is, as a statement of what counsel for the defendants had submitted to the Magistrate, not erroneous. However, I accept that the subsequent sentences demonstrate a conflation of questions of mistake of fact and law. In that respect, I reject the submission of counsel for the defendant that the "defence" could include a mistake as to whether or not native title existed. It seems to me that a mistake as to whether or not one possessed a legal title is not a mistake of fact. A mistake as to one of the facts that could give rise to native title could be a mistake of fact, so long as its subject matter were exculpatory. But a consideration of that question is hypothetical in the extreme. As I have indicated, leaving aside the document containing agreed facts pursuant to s 191 of the Evidence Act, not a single piece of evidence has been led yet in the proceedings by either party.
I am not persuaded by the submissions of senior counsel for the plaintiff that there is some disjunction between the onus being on the defendants to satisfy the Magistrate on the balance of probabilities that the Native Title Act suspends the operation of the offence creating provisions, and the onus being cast on the prosecution to disprove honest and reasonable mistake of fact beyond reasonable doubt once it has been raised by the defendants. After all, it is not uncommon for there to be sufficiently raised in a murder trial the true defence of mental illness and the "defences" of self-defence or provocation. Those different onuses co-exist without difficulty.
I am also not persuaded by the submissions of senior counsel for the plaintiff that, if the "defence" were to apply to native title, then one would expect one or other of the Parliaments to have said so. Once it is accepted that the common law "defence" exists with regard to the offences, it would be surprising for either Parliament to have attempted to add to or subtract from that common law "defence". There may be many facts that could fall within the "defence", so long as they are relevant to negativing culpability for the offence charged.
But in any event, I believe that the issues to which senior counsel for the plaintiff invited my attention fall away once the distinction is appropriately drawn between mistakes of fact and law.
Prayers 1 and 3
I accept the submission of counsel for the defendants that there were no orders made in the Local Court amenable to appeal. I propose therefore to refuse Prayers 1 and 3.
Making a declaration?
Error having been established, the question is whether the plaintiff has persuaded me that I should exercise my discretion to make the declaration in Prayer 4.
One of the primary concerns in exercising that discretion relates to the hypothetical nature of the effect of that declaration on the rights of the parties. The probability of whether the facts or events that are said to require the making of the declaration will actually arise affects the exercise of the discretion to issue a declaration. I note the statement of general principle by Jacobs J in University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1 at p 24:
"A declaration of right based on facts found in the particular case can certainly be made but it is not permissible to make a declaration of right which amounts to a conclusion of fact from a hypothetical or assumed state of facts and thereby to enunciate or declare a rule of apparently general application as though it were a declaration of applicable law. A declaration of right based on hypothetical or assumed facts may be made when the assumed facts can be certainly and exhaustively stated and when the conclusion flowing therefrom is truly a conclusion of law but not when it is itself a conclusion of fact."
In light of the state of the evidence in this matter, those considerations are important here.
Declarations in relation to criminal proceedings have attracted particular judicial circumspection on the part of the High Court of Australia. In Sankey v Whitlam Gibbs ACJ said at pp 25-26:
"In any case in which a declaration can be and is sought on a question of evidence or procedure, the circumstances must be most exceptional to warrant the grant of relief. The power to make declaratory orders has proved to be a valuable addition to the armoury of the law. The procedure involved is simple and free from technicalties [sic]; properly used in an appropriate case the use of the power enables the salient issue to be determined with the least possible delay and expense. But the procedure is open to abuse, particularly in criminal cases, and if wrongly used can cause the very evils it is designed to avoid. Applications for declarations as to the admissibility of evidence may in some cases be made by an accused person for purposes of delay, or by a prosecutor to impose an additional burden on the accused, but even when such an application is made without any improper motive it is likely to be dilatory in effect, to fragment the proceedings and to detract from the efficiency of the criminal process. I am not intending to criticize those concerned with the conduct of Bourke v. Hamilton, or to show any disrespect for the careful judgments delivered in that matter-indeed I have derived much assistance from them-when I say that that case provides an example of the way in which criminal proceedings may be needlessly protracted if they are interrupted by an application for a declaration-in the end the declaration sought was refused but the proceedings had been delayed for the space of almost a year. The present case itself is another regrettable example of the delay that can be caused by departures from the normal course of procedure. For these reasons I would respectfully endorse the observations of Jacobs P. (as he then was) in Shapowloff v. Dunn, that a court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order. Although these remarks may be no more than mere "administrative cautions" (cf. Ibeneweka v. Egbuna) I nevertheless consider that if a judge failed to give proper weight to these matters it could not be said that he had properly exercised his discretion." (footnotes omitted)
The High Court has also said in R v Iorlano; Ex parte Attorney-General (Cth) [1983] HCA 43; (1983) 151 CLR 678 at p 680:
"[I]t is highly undesirable to interrupt the ordinary course of criminal proceedings by applications for leave to appeal or prerogative relief for the purpose of challenging rulings on questions of admissibility of evidence."
In Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 the plurality said at [23]:
"With respect to the exercise of the power to make the declaratory orders now sought by the applicants, authority in this Court affirms an important general principle. This is that power to make declaratory orders should be exercised sparingly where the declaration would touch the conduct of criminal proceedings. The fragmentation of the criminal process is to be actively discouraged." (footnotes omitted)
Senior counsel for the plaintiff noted that, in that case, a declaration was indeed made. But it is important that that was done in a context where both parties sought the declaration, and what was sought touched on the construction of an important Act and its operation - the Law Enforcement (Controlled Operations) Act 1997. In the words of the plurality at [25]:
"There is a considerable public interest in the observance of due process by law enforcement authorities by putting beyond doubt important questions of construction of the [Law Enforcement (Controlled Operations) Act]."
As noted above, senior counsel for the plaintiff in these proceedings also invited my attention to another case where a declaration was issued to intervene in criminal proceedings, Rozenes v Beljajev. During the trial at first instance in that matter, the trial judge ruled that his Honour had a residual discretion to exclude the admissible evidence of a Crown witness. The pre-empanelment motions in the trial had dragged on for a lengthy period by the time the trial judge gave that indication, and without the excluded evidence the prosecution case would have collapsed. In relation to the jurisdiction of a Court to exercise its discretion to grant a declaration in a criminal matter, in particular relating to an evidentiary ruling, the Supreme Court of Victoria said at p 520:
"[I]n circumstances which were "most exceptional" it was appropriate to grant a declaration that the documents were not privileged from production. His Honour [Gibbs ACJ in Sankey] noted as relevant that "the proceedings have already been long delayed (as) a cogent reason for putting them (the questions) to rest". A number of factors may be mentioned which suggest that declaratory relief is appropriate in the present case: the very great delay since these matters arose in 1989; the course which the proceeding has taken in the County Court; the ruling of the judge as to the nature of the discretion to exclude evidence; the question whether a judge should proceed in the way in which his Honour did, regardless of whether such a discretion exists; the profound consequences of the rulings for the present trial and (if those rulings are correct) their possible consequences for the criminal justice system in Victoria."
Those kinds of extreme circumstances may be contrasted with the position here.
A similar admonition against fragmentation of the criminal process by way of declaration and other relief in this Court can be found in Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 at p 329.
A major concern that Courts have in refusing to grant declarations in situations where the criminal process has already begun is to allow the criminal process to function in its own statutory context. In other words, where there is already a comprehensive statutory appeal and review mechanism in place, as is the case here, the Courts are reluctant to exercise their discretion to issue a declaration: see, for example, Hill v Green [1999] NSWCA 477; (1999) 48 NSWLR 161 at [163].
The review of these cases leads me to the conclusion that, whilst this Court has a discretion to issue a declaration in relation to criminal proceedings in the Local Court, it would require "most exceptional" circumstances.
For the following reasons I am not persuaded that this case falls within the "most exceptional" circumstances contemplated above.
First, I do not believe that the rulings of the Magistrate have any great formality attached to them. Reliance on s 139 of the Criminal Procedure Act seems, with respect, to have been misconceived, because in its terms and by its location within the Criminal Procedure Act, that section is, it seems to me, referring to trials on indictment. Having said that, I do not seek to discourage counsel in summary hearings from discussing the issues with the magistrate before the evidence commences in appropriate cases. But these were not formal orders, or judgments. To my mind they were indications of how the Magistrate conceived of various aspects of substantive law and procedure.
Secondly, despite the reticence expressed by senior counsel for the plaintiff with regard to cavilling with her Honour's rulings, I do not think it would be inappropriate for the parties to approach the matter again with her Honour. That is particularly the case when, unfortunately, the leading High Court decision on the distinction between mistakes of fact and mistakes of law with regard to criminal liability had not been brought to the attention of her Honour. I would have thought that, just as a ruling on evidence may be revisited, so may a ruling before the evidence starts, such as this one.
Indeed, the matter may not finally crystallise unless and until the defendants tender evidence said to be relevant to the "defence", and the plaintiff objects to it. Only then will the parameters need to be definitively determined.
Thirdly, I am very mindful of the warnings against fragmentation of criminal proceedings. In my experience, it is almost unheard of for a summary hearing, or indeed a trial on indictment, in which the magistrate or judge has, before the evidence commenced, made a ruling as to certain legal questions, to then be the subject of a declaration of this Court as to an error perceived by one or other of the parties in those rulings.
Fourthly, nothing particularly exceptional has happened in these summary proceedings. A summary hearing is expected to lead to consideration of whether native title applies to suspend the offence-creating provisions. Separately, it may involve the "defence". Parties have made submissions about the way forward, and the Magistrate has made some rulings. Whilst the potential operation of native title in criminal proceedings is somewhat unusual, it does not seem to me, taken as a whole, that these proceedings are wholly exceptional.
Fifthly, it is quite possible that many of these questions will turn out not to arise on the evidence. As I have said, apart from the document prepared pursuant to s 191 of the Evidence Act, no evidence has been tendered or called. It may be that, ultimately, no evidence will be led with regard to the "defence". If it is led, it may be excluded; if it is not excluded, it may be that the evidence will be quite circumscribed. I am not inclined to make a declaration that may well turn out to be quite unnecessary on the evidence in the case.
Sixthly, the submission that the matter is already fragmented and delayed and therefore making the declaration will not make matters worse is something of a self-fulfilling prophecy. If the plaintiff had not decided to come to this Court, the matter would not have been fragmented.
Seventhly, the fact that the application to adjourn the matter was a joint one does not, to my mind, carry much weight. It is clear that counsel for the defendants was a little surprised by the application pursuant to s 139 of the Criminal Procedure Act on the first day of the hearing; as it turns out, perhaps understandably. I infer, that on the following day, he wished to consider his position after the five questions had been answered.
Eighthly, I would not wish any declaration that I were to make to operate as a precedent or encouragement for similar fragmentation of future summary prosecutions.
In short, although the plaintiff has demonstrated error in the Court below, I decline to make the declaration sought in the summons. The matter should simply proceed before the Magistrate in the usual way.
Conclusion
In summary with regard to the relief claimed:
(1) I propose to dismiss Prayers 1 and 3 on the basis that there was no order made in the Local Court.
(2) I propose to dismiss Prayer 2 on the basis that it was not pressed by the plaintiff.
(3) I propose to dismiss Prayer 4 on the basis that, although error was identified, I decline to exercise my discretion to make a declaration.
(4) I decline to make Prayer 5 on the basis that is unnecessary.
(5) As for costs, the plaintiff has not claimed costs in the summons or in oral submissions. Counsel for the defendants requested that I permit him liberty to apply within 7 days of the publication of this judgment as to costs. I am prepared to so order. But it may be helpful for me state that, in light of my finding of legal error in the Court below, along with my rejection of an important submission of counsel for the defendants, my preliminary inclination is that no order for costs should be made.
Orders
I make the following orders:
(1) Summons dismissed.
(2) Defendants to have liberty to apply until 4pm, 1 August 2012, for an order as to costs.
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Decision last updated: 26 July 2012
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