Chen & Anor v Diggle

IN THE SUPREME COURT
OF QUEENSLAND
CIVIL JURISDICTION
No. 4650 of 1999
Before Mr Justice Ambrose
[Chen & Anor v Diggle]
BETWEEN: YUNG CHUAN CHEN

Applicant

AND: COMANS ASM

First Respondent

AND: JOHN ROBERT DIGGLE

Second Respondent
REASONS FOR JUDGMENT - B.W. AMBROSE J.

Delivered the 6th day of August 1999

On 2 August 1999 I dismissed the applicant’s application to judicially review the decision of a stipendiary magistrate on 7 May 1999 to commit the applicant for trial in the District Court at Brisbane at its sittings commencing 1 June 1999 upon a number of criminal offences. In fact on 30 July 1999 an indictment was presented in the District Court at Brisbane containing four counts. In view of the matters raised and argued I intimated that I would deliver written reasons which I now do.
It is convenient to set forth the rather unusual circumstances of this application.
On 21 May 1999 the applicant applied to review the decision of Mr Comans ASM of 7 May 1999 to commit him for trial on charges upon which he has subsequently been indicted.
No affidavits have been filed as to what occurred in the course of the committal proceedings, however counsel for the applicant observed in the course of his submissions on the first day:-
“The Magistrate made a decision after a four day voir dire that a confession ought be allowed in. In making the decision he found that there were four counts which could have been interpreted as being an inducement or a threat. Plotzki which is a Court of Appeal decision says there is no room for niceties. If it could have amounted to that then it must be thrown out.”
It is unclear to me upon what basis the magistrate was persuaded to conduct a four day voir dire to determine the voluntariness of an alleged confession upon a committal proceedings.
The reference to the Court of Appeal decision in Plotzki appears to be to R v Plotzki [1972] Qd R 379 a decision of the Court of Criminal Appeal on the ruling of a trial judge on a voir dire that the effect of an inducement leading to a confession had dissipated by the time a second confession was made 15 to 20 hours later. At 384-385 observations are made relating generally to the principles to be applied in determining upon a voir dire the application of s.10 of the Criminal Law Amendment Act 1894. I find those observations of little assistance in determining the critical issue upon this application.
Without attempting to analyze the content of the application for review (as amended) I will simply record them:
“Applicant:                  YUNG CHUAN CHEN
AND
First Respondent:         COMANS ASM
Second Respondent:    JOHN ROBERT DIGGLE
Application to review the decision of His Worship Comans ASM on 7 May 1999:-
1.That a confessional statement obtained from the Applicant was admissible in the circumstances in which it was allegedly obtained.
2.That Comans ASM wrongly applied or failed to apply the law in respect of confessional evidence.
3.That the applicant be committed to the District Court sittings, Brisbane,
1 June 1999.
The applicant is aggrieved by the decision in that:-
1.He was committed to trial to the District Court sittings 1 June 1999 when the Acting Stipendiary Magistrate either failed to apply the law properly/failed to apply the law at all and/or made one or more errors of law.
AMENDED APPLICATION FOR A             McLaughlin & Associates
STATUTORY ORDER OF REVIEW            Solicitors
11 Vanessa Boulevard
Filed on behalf of the Applicant  Springwood 4127
Form 54 Rule 566   Tel:   3808 7777
Facsimile: 3808 6677
The grounds of the applicant are:-
1.His Worship Comans ASM, having accepted that words spoken to the Defendant were capable of amounting to a threat or inducement, failed to exclude the alleged confessional evidence of the Applicant contrary to law.
2.His Worship Comans ASM failed to take into account the balance of the evidence that would remain when determining whether a jury could convict not would convict if the confessional evidence was excluded by the trial Judge in the exercise of the trial Judge’s discretion, and this was contrary to law, having wrongly decided that The Queen v Grasby did not apply to the Justices Act (Qld).
3.The acting Stipendiary Magistrate was wrong in not accepting that this in all the circumstances was a case where the facts as they developed should have led the acting Stipendiary Magistrate to the view that this was one of those cases where the special circumstance required him to exercise a discretion not to commit.
The Applicant claims:-
An order/declaration:-
1.That the alleged confession be excluded from evidence having regard to the finding of the Magistrate, that words spoken by the Detectives could amount to a threat or inducement.
2.Alternatively, that the Magistrate be directed to reconsider the application of The Queen v Grasby to the Justices Act (Qld).
...................................................
Solicitor for the Applicant”
Eventually on 26 July 1999 there was an appearance upon the application. Mr Comans ASM appeared merely to indicate that he would abide the order of the Court whereupon the applicant sought leave to amend the application for review to add John Robert Diggle who apparently was a police officer who had conducted the applicant’s committal proceedings.
On that occasion leave to add Mr Diggle as a second respondent to the application was given on condition that a copy of it be served on the Director of Public Prosecutions and upon Mr Diggle by 4 p.m. on 27 July 1999. The matter was also then adjourned for mention on 2 August 1999.
When the matter was called on, counsel for the applicant read an affidavit to show that the directions as to service had been complied with. As well there was an appearance on behalf of both the Director of Public Prosecutions and John Robert Diggle.
Both asked that the application be struck out and Mr Diggle sought an order for costs.
After reference to some authority I acceded to their application, struck out the application for a statutory order of review which had been filed on 21 May 1999 and amended on 26 July 1999 and ordered that the applicant pay the costs of Mr Diggle to be taxed on the District Court scale. No order for costs was sought by the Director of Public Prosecutions. The contents of the amended application in all material respects are identical with those of the unamended application.
The function performed by a stipendiary magistrate in conducting committal proceedings is to be found in s.104(2) of the Justices Act 1886 which provides -
“(2)When, upon such an examination all the evidence to be offered on the part of the prosecution has been adduced and the evidence, in the opinion of the justices then present, is not sufficient to put the defendant upon trial for any indictable offence, the justices shall order the defendant, if the defendant is in custody, to be discharged as to the charge the subject of that examination, but if in the opinion of such justices ------ the evidence is sufficient to put the defendant upon trial for indictable offence then the justices --- shall -
Adopt the course specified in (a) and (b)
and commit the defendant to be tried.”
Under s.104(4) if defendant offers evidence -
“with respect to the charge the subject of the examination the justices shall hear and receive all admissible evidence tendered on behalf of the defendant which tends to show whether or not the defendant is guilty of the offence with which the defendant is charged”.
Section 106 provides -
“106Nothing herein contained shall prevent the prosecutor in any case from giving in evidence any admission or confession or other statement of the defendant made at any time, which by law would be admissible as evidence against such person.”
Under s.108(1) if the Justices are of the opinion that the evidence is not sufficient to put the defendant upon trial for any indictable offence -
“The justices shall order the defendant, if the defendant is in custody, to be discharged as to the charge the subject of the examination but if the justices are of the opinion that the evidence is sufficient to put the defendant upon trial for an indictable offence they shall, subject to section 113 order the defendant to be committed to be tried for the offence before a court of competent jurisdiction --”.
Under s.126(1) where a defendant is committed to be tried then the committing Justices -
“shall as soon as practicable after such committal, transmit, or cause to be transmitted, all informations, depositions, statements, undertakings as to bail and copies of notices to witnesses relating to such committal in the following manner -
---
(b)in all other cases to the Attorney-General or director of public prosecutions.”
Although the application makes reference to the failure of the stipendiary magistrate in this case to apply Grassby v The Queen (1989) 168 CLR 1 it is unclear from the submissions made what precise principle established by that case was not applied by the stipendiary magistrate. Indeed it is not clear what principle established in that case could have any relevance to the conduct of committal proceedings conducted in accord with ss 104 and 108(1) of the Justices Act. 19 In that case at 13, Dawson J observed with respect to the outcome of committal proceedings in New South Wales -
“The Attorney-General or Director of Public Prosecutions is not bound by the decision of a magistrate to commit or not to commit a person for trial. An indictment may be filed whether or not the accused has been committed for trial upon the charge contained in the indictment, indeed even if the accused has been discharged in committal proceedings:”
At 14 and 15 he observed -
“He (i.e. a person committed for trial) will, of course, ordinarily stand trial if committed, although not necessarily so and a person discharged may nevertheless be indicted. The powers of a magistrate in committal proceedings are thus, strictly speaking, still confined to determining whether the person charged shall be discharged, committed to prison to await trial or remitted to bail and do not involve the exercise of a judicial function.”
He continued at 15 -
“There is controversy whether the existence of that duty coupled with the nature of the function performed by the magistrate is sufficient to subject him to prohibition and the question must still be regarded as undecided. In Sankey v Whitlam (1978) 142 C.L.R. at 83, Mason J thought that such a result did follow, but the other members of the Court went no further than to affirm the availability of declaratory relief in the proper case.’
Those seem to me to be the only references to principle which could have any relevance to the current application. That case in essence dealt with the power of a magistrate conducting committal proceedings to stay proceedings on the charge albeit that he found a prima facie case established against the applicant and was not of the opinion upon the whole of the evidence that a reasonable jury would be unlikely to convict him.
Under s 20 of the Judicial Review Act 1991 an application for review of an administrative decision may be made and under s 21 of conduct related to the making of such a decision.
The Judicial Review Act 1991 undoubtedly applies to administrative acts, decisions etc made under the Justices Act1886 which is not excluded from the operation of the Act under Part 2 of Schedule 1 of the 1991 Act.
In the course of argument, counsel for the applicant referred on a number of occasions to the decision of the Federal Court in Lamb v Moss (1983) 49 ALR 533. That Court considered the competency of an application to review the decision or conduct of a stipendiary magistrate in the course of committal proceedings pursuant to the Administrative Decisions (Judicial Review) Act (1977) (Cwth).
The nature of the short legal point there considered was similar to that considered by Derrington J in Purcell v Venardos(No. 1) [1996] 1 Qd R 310. Indeed in Purcell v Venardos it was conceded by the respondent to that application that a refusal to commit for trial persons charged with an offence was a decision which is reviewable under the Judicial Review Act1991. It appears from reference to that report at 311 that Stipendiary Magistrate at Brisbane ex parte Kornhauser [1992] 2 Qd R 150 must have been regarded as an authority requiring that concession.
The facts of Kornhauser of course and the decision there sought to be reviewed have little in common with the matters sought to be reviewed by the applicant either in this case or in Purcell v Vernardos (No. 1) . In Kornhauser the issue was whether a decision to commit for trial upon evidence led on the committal proceedings amounted to a failure by the magistrate to apply a “decision” of a Supreme Court judge constituting a binding precedent to be applied by the magistrate conducting the committal proceedings.
It would be unhelpful to analyze in detail the facts in Kornhauser. It suffices to say that the view taken by the majority in the Full Court of Queensland was that in the absence of all the evidence given on the committal proceedings it was not possible to obtain a prohibition or certiori merely by referring to an observation made by the stipendiary magistrate in the course of deciding to commit Kornhauser for trial even if it could be said that his expressed reason for committing was erroneous in law.
The end result in that case was that the application for mandamus, certiorari and prohibition directed to the magistrate who had committed the applicant for trial was refused.
In my view little assistance can be gained from observations made on a completely different set of circumstances in a case relating to the grant of prerogative relief years before the provisions of the Judicial Review Act 1991 came into effect.
In Purcell v Venardos (No. 2) [1997] 1 R 317 the judicial review there reported related to the same judicial review to which reference was made in Purcell v Venardos (No. 1) in which as I have already indicated it was conceded that the decision not to commit for trial was a type of decision which was reviewable under the Judicial Review Act. Naturally the holding of the judicial review reported in Purcell v Venardos (No. 2) must be considered in that light. In my judgment the fact that a judicial review proceeded in the circumstances does not of itself amount to any greater authority for the propriety of so holding one than is the concession made that the decision of the stipendiary magistrate was reviewable under the Judicial Review Act which led to that review proceeding. In Purcell v Venardos (No. 2) the application was dismissed on the ground that examination of the evidence showed that it was open to the magistrate to not commit having regard to the obligation imposed upon him by s 104(2) of the Justices Act. It is unhelpful in my view to give any more attention to either Purcell v Venardos (No. 1) or Purcell v Venardos (No. 2) upon the facts of this case.
What is clear from Lamb v Moss (1983) 49 ALR 533 - and particularly at 564 is that -
“The power to make an order of review under the Act in respect of committal proceedings should be exercised only in the most exceptional cases, especially in respect of a decision in the course of proceedings. Additional considerations might intrude at the final stage; for example, in respect of his committal for trial and commitment to prison pending trial: cf Sankeyv Whitlam (1978) 142 CLR 1.”
As Mason J observed in Sankey v Whitlam (1978) 142 CLR 1 at 81-82-
“---There is a dearth of authority supporting the grant of declaratory relief in relation to committal proceedings. The absence of authority is doubtless to be explained by a variety of circumstances - the recognition that the function of a magistrate in hearing committal proceedings is to decide whether there is a prima facie case against that defendant which warrants his being put upon trial; that a committal for trial is a preliminary examination which involves no final determination of the defendant’s guilt of the offence charged; ---
The chequered history of the committal proceedings in this very case is a salutary example of what may occur when proceedings are commenced in a superior court seeking answers to some, but of necessity not all, of the issues arising in committal proceedings. The proceedings before the magistrate are interrupted whilst the superior and appellate courts give attention to particular questions upon which guidance is sought. It may result in unacceptable discontinuity and delay.”
In that court a declaration was made with respect to a charge in respect of which committal proceedings had been and were being held; it was held that the first charge disclosed no offence in law.
In my view the matters considered in that case which involved whether the charge laid against the applicant was for an offence known to the law and secondly whether in any event certain documents sought to be tendered were privileged lend absolutely no assistance to the contention of the applicant that this Court is warranted in re-examining the whole of the evidence given upon committal proceedings to determine presumably upon a re-hearing of that proceedings, whether inter alia, the question of voluntariness of a confession, and therefore its admissibility was correctly decided.
In my view the administration of the criminal law in this State involves a stipendiary magistrate conducting committal proceedings under the constraints of ss 104, 106 and 108 of the Justices Act. When a stipendiary magistrate commits for trial, the Director of Prosecutions must consider the material placed before the magistrate and then decide whether or not to present an indictment for an appropriate offence - not necessarily the one or ones upon which the magistrate may have committed the person for trial. If it is decided to present an indictment, then the court in which it is presented must determine all questions relating to the evidence to be tendered. Essential to admissibility of confessional evidence is its voluntariness. Because trials of indictable offences in Queensland take place before juries, questions both of admissibility of an alleged confession and its discretionary exclusion are determined upon a directions hearing under s. 592 of the Criminal Code or perhaps upon a voir dire by the trial judge after presentation of the indictment.
The reason why questions of admissibility of confessions or their discretionary exclusion are conducted upon a s. 592A directions hearing or upon voir dire is to avoid distracting the jury by facts and arguments relating to admissibility or discretionary exclusion before the trial judge has ruled on those matters. As far as the voluntariness of a confession is concerned of course, the onus is on the Crown to show that it is voluntary on the balance of probabilities. If the confession is admitted in evidence of course, the onus is then on the Crown to persuade the jury beyond reasonable doubt that the confession was made and that it was true.
On what basis there was a voir dire conducted upon the committal proceedings in this case was not addressed. One can only hope that this is not a practice encouraged upon committal proceedings. In my view if there be such a practice, it ought be discontinued. The only point in having a voir dire is to avoid distracting the jury by evidence and arguments which may not otherwise come to the attention of the jury and thus perhaps prevent an accused person from obtaining a fair trial based only upon admissible evidence placed before it.
In my view, far from the circumstances of the case placed before me constituting “an exceptional case” to which reference was made in Lamb v Moss (1983) 49 ALR 533 at 564-5 there is nothing exceptional at all in this case. It was not and indeed could not be contended that any of the offences in respect of which the committal proceeding took place or in respect of which the indictment was ultimately presented were offences unknown to the law. It could not be contested and was not suggested that the magistrate impeded in any way a full and fair examination of all witnesses relating to the confessional evidence and presumably to any other evidence led on the committal proceedings or that he failed to observe the proper procedure in conducting that proceedings (cf: R v. Schwarten Ex Parte Wildschut [1965] Qd.R. 276).

Even if the magistrate did make some passing observation that words in these circumstances were “capable of amounting to a threat or inducement” one would inevitably have to look at the circumstances in which the alleged confession was made and the context in which that observation was proffered and the system under which criminal law is administered in this State requires that admissibility of evidence led upon a committal be first considered by the Director of Prosecutions and secondly if necessary, by the trial judge.
In my view it is quite inappropriate for persons dissatisfied with the admission of evidence (with or without a ruling on objection taken) by a stipendiary magistrate in committal proceedings to apply to this Court for a judicial review of that admission or ruling; to permit such a procedure would impede the proper and efficient administration of the criminal law. It is obviously less expensive for all parties concerned and more in accord with the traditional administration of the criminal law for those matters to be debated before and determined by the Director of Public Prosecutions initially and if necessary before and by a judge of the Court to which that person is committed for trial upon an application for directions and determination of such matters under s. 592A of the Criminal Code or perhaps upon voir dire upon trial in that Court.
While undoubtedly s 10 of the Criminal Law Amendment Act 1894 is the touchstone for admissibility of confessional evidence the presumption of “inducement by a threat or promise unless the contrary be shown” assumes a judicial determination of the issue of voluntariness beyond the function of a magistrate conducting a committal proceedings. There may be exceptional cases where the uncontradicted evidence establishes beyond argument that an alleged confession has been induced by a promise or a threat which may justify a magistrate conducting committal proceedings concluding that evidence of such a confession is not “admissible” within s. 106 of the Justices Act and therefore disregarding it in exercising his function under ss .104 and 108 of that Act.
In my view however a magistrate conducting committal proceedings ought be very slow indeed to embark upon a determination of admissibility of confessional evidence under s 10 of the Criminal Law Amendment Act 1894 of the sort which a judge might be required to do upon an application under s 592A of the Criminal Code or upon a voir dire in the course of a trial before a jury. In this case it is unfortunate that the committing magistrate expressed any view upon the evidence led upon “the four day voir dire”; it would have been preferable had he simply permitted the applicant to test the confessional evidence led without embarking upon a judicial investigation as to whether any threat or promise within s.10 had been made and if so whether it had induced the confession. The determination of the voluntariness of a confession at Common Law and under s.10 is considered in R v. Burt (1998) B.C. 9806818 where White J with whose judgment McPherson and Thomas JJA concurred, at paras 211-229 outline some of the difficulties in making this determination.
Undoubtedly the magistrate will keep in mind the provisions of s.10 when he considers the whole of the evidence to determine whether it is “sufficient to put the defendant upon trial” under s.108(1) of the Justices Act 1886.
It is undesirable for a magistrate conducting a committal proceeding to embark upon such an investigation which involves essentially the exercise of a purely judicial function. It would be even more undesirable for this Court to review any such determination under the Judicial Review Act 1991.
There may be exceptional circumstances in which such a course involving reviewing an essentially judicial determination might be justified although I find it difficult to conceive of them. Upon the material and submissions advanced upon this application, this case certainly does not exhibit or involve such exceptional circumstances.
IN THE SUPREME COURT
OF QUEENSLAND
CIVIL JURISDICTION
  No. 4650 of 1999
Before Mr Justice Ambrose
[Chen & Anor v Diggle]
BETWEEN:              YUNG CHUAN CHEN
Applicant
AND:  COMANS ASM
First Respondent
AND:  JOHN ROBERT DIGGLE
Second Respondent
REASONS FOR JUDGMENT - B.W. AMBROSE J.
Delivered the 6th day of August 1999
CATCHWORDS:                 JUDICIAL REVIEW - error of law - wh decision of   stipendiary magistrate to commit the applicant for trial was reviewable under the Judicial Review Act 1991 - considerations as to the role and function of magistrate
R v Plotzki [1972] Qd R 379
Grassby v The Queen (1989) 168 CLR 1
Sankey v Whitlam (1978) 142 CLR 1
Lamb v Moss (1983) 49 ALR 533
Purcell v Venardos(No. 1) [1996] 1 Qd R 310
R v A Stipendiary Magistrate at Brisbane ex parte Kornhauser   [1992] 2 Qd R 150
Purcell v Venardos (No. 2) [1997] 1 Qd R 317
R v. Schwarten Ex parte Wildschut [1965] Qd R 276
R v Burt (1998) B.C. 9806818 C.A. No. 302 of 1998
Criminal Law Amendment Act 1894
Justices Act 1886
Judicial Review Act 1991
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Criminal Code
Counsel:  Mr S Di Carlo for the applicant
Mr T Winn for the first respondent
Mr C Strohfeldt for the second respondent
Solicitors:  McLaughlin & Associates for the applicant
Director of Prosecutions for the first respondent
Queensland Police Service for the second respondent
Hearing Date:   26 July 1999 & 2 August 1999

[1999] QSC 181

6 August 1999