Clyne, Peter Leopold v Scott, Eardley Murray

[1983] FCA 361

Re: PETER LEOPOLD CLYNE
And: EARDLEY MURRAY SCOTT (S.M.) and PAUL JAMES HOLDING (1983) 74 FLR 64
No. G193 of 1983 and G317 of 1983
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.(1)

CATCHWORDS

Administrative Law - Judicial Review - Decisions made in committal proceedings for alleged breach of Banking (Foreign Exchange) Regulations - Claim that proceedings could not be maintained or continued since not properly instituted - Claim that regulation 42 of Banking (Foreign Exchange) Regulations invalid since it does not "prescribe" a penalty for breach of regulation 40 as required by Banking Act, 1959 - No consent of Treasurer as required by Act prior to institution of proceedings - Informant not a proper informant - Decision to admit certain admissions made by applicant in other proceedings - Admissibility of the confessional material considered - Discretion - Consideration of power of review in respect of committal proceedings.

Administrative Decisions (Judicial Review) Act, 1977 s.5

Banking Act, 1959 s.39(2)(q), 70(1), 70(3), 70(4)

Banking (Foreign Exchange) Regulations, regulation 40, 42

Crimes Act, 1914 s.13

Administrative Law - Judicial review - Alleged breach of regulations made under Banking Act 1959 (Cth) - Whether regulation was invalid - Whether consent of Treasurer was required before proceedings were instituted - Whether contrary intention appeared in Banking Act or regulations - Applicant sought review of decisions of a stipendiary magistrate in committal proceedings - Admissibility of evidence - Whether Federal Court of Australia should intervene in committal proceedings - Discretion to refuse relief - Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5 - Banking Act 1959 (Cth), ss 39, 70 - Banking (Foreign Exchange) Regulations, regs 40, 42 - Crimes Act 1914 (Cth), s. 13.

HEADNOTE

Committal proceedings were brought against the applicant by the second respondent who alleged that the applicant had breached s. 40 of the Banking (Foreign Exchange) Regulations made under the Banking Act 1959 (Cth). A number of preliminary objections were made on behalf of the applicant, namely: (i) reg. 42 of the Banking (Foreign Exchange) Regulations was invalid; (ii) the proceedings were bad because the consent of the Treasurer, as required by s. 70 of the Banking Act 1959 (Cth), was not obtained for some days after the information was exhibited on 10 December 1982; (iii) the information was bad because the informant was not an officer of the Reserve Bank, the proceedings having been brought under regulations administered by that bank.

On 20 July 1983, the first respondent, a stipendiary magistrate before whom the committal proceedings were heard, rejected the objections taken and held in a reserved decision that he had jurisdiction to proceed in the matter.

On 7 October 1983, the first respondent in a reserved decision decided to admit into evidence certain material which had been tendered in the course of the applicant's cross-examination in other proceedings.

The applicant applied to the Federal Court of Australia under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for review of the decisions of the first respondent, and by consent both applications were heard together.

Held: (1) Regulation 42 of the Banking (Foreign Exchange) Regulations was within power.

(2) Subject to the protection conferred by s. 70(4) of the Banking Act 1959 (Cth), proceedings may be instituted by the charge and arrest of a person or by the issue and execution of a warrant for his arrest and by his remand, notwithstanding that the Treasurer's consent has not then been obtained.

(3) There is no warrant for suggesting that any contrary intention "appears" within the meaning of s. 13 of the Crimes Act 1914 in the Banking Act 1959 (Cth) on the Banking (Foreign Exchange) Regulations.

(4) It was not appropriate that the Federal Court of Australia should intervene in committal proceedings on a question of admissibility of evidence.

Bacon v. Rose (1972) 2 NSWLR 793; Sankey v. Whitlam (1977) 29 FLR 346, referred to.

Lamb v. Moss (1983) 49 ALR 533, applied.

(5) Accordingly, in the exercise of its discretion the court declines to grant the relief sought and the application would be dismissed.

HEARING

Sydney, 1983, November 10, 15, 16; December 12. #DATE 12:12:1983

APPLICATION.

Applications to the Federal Court of Australia under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for a review of certain reserved decisions made by the first respondent, a stipendiary magistrate, in committal proceedings brought against the applicant on the information of the second respondent. It was alleged that the applicant had breached s. 40 of the Banking (Foreign Exchange) Regulations made under the Banking Act 1959 (Cth).

E. C. C. Lewis and J. W. M. Adams, for the applicant (who later appeared in person).

D. F. Rofe Q.C. and P. Roberts, for the second respondent.

Cur. adv. vult.

Solicitor for the applicant: P. Clyne.

Solicitor for the second respondent: T. A. Sherman, Acting Commonwealth Crown Solicitor.

J.D.W.

ORDER

1. The application be dismissed in each case.

2. The applicant pay the costs of the second respondent, including reserved costs.

Orders accordingly.

JUDGE1

This is an application under the Administrative Decisions (Judicial Review) Act, 1977 ("the Judicial Review Act") seeking to review a number of decisions made by the first respondent sitting as a stipendiary magistrate in committal proceedings brought against the applicant on the information of the second respondent.

The proceedings in which the decisions were made were instituted by reason of an information charging the applicant with a breach of regulation 40 of the Banking (Foreign Exchange) Regulations made under the Banking Act, 1959. The information gave particulars of an alleged false statement said to be contrary to regulations 40 and 42 which, so far as material, provide:

"40. A person shall not make--

(b) to any Commonwealth officer;

(c) to any officer of the Bank or of an agent of the Bank; or

(d) to any person to whom application is made for the issue of a money order payable outside Australia,

any statement, whether oral or in writing, relating to any act, transaction, matter or thing to which any provision of these Regulations applies, which he knows to be untrue, or which is misleading, in any particular, or which is made by him without his having first made proper inquiries to ascertain the truth thereof."

"42. (1) A person shall not contravene or attempt to contravene, or fail to comply with, any of the provisions of these Regulations.

Penalty--

(a) if the offence is prosecuted summarily--a fine not exceeding One thousand dollars or imprisonment for a term not exceeding six months; or

(b) if the offence is prosecuted upon indictment--a fine not exceeding One hundred thousand dollars or imprisonment for a period not exceeding five years."

The information was exhibited on 10 December, 1982 and on the same day a warrant was issued for the apprehension of the applicant. The applicant was arrested on that day but released on bail on 11 December, 1982. Although the applicant first appeared before a Court of Petty Sessions on 13 December, 1982 when he was remanded until 20 December, 1982, the consent of the Treasurer to the institution of the proceedings as required by s.70 of the Banking Act, 1959, was not given until 16 December, 1982. Section 70 provides:

"(1) Subject to the next succeeding sub-section, proceedings for an offence against this Act or the regulations shall not be instituted without the consent in writing of the Treasurer.

(2) An offence arising--

(a) under regulations made under section 39; or

(b) under Part IV,

may be prosecuted summarily with the consent in writing of a person authorized in writing by the Treasurer to consent to the summary prosecution of offences under those regulations or that Part.

(3) A person charged with an offence referred to in the last preceding sub-section may be arrested, or a warrant for his arrest may be issued and executed, and he may be remanded in custody or on bail, notwithstanding that the consent of the Treasurer or of a person authorized by the Treasurer has not been obtained, but no further proceedings shall be taken until that consent has been obtained.

(4) Nothing in this section prevents the discharge of a person charged if proceedings are not continued within a reasonable time."

Committal proceedings were commenced before the first respondent on 4 July, 1983 and the hearing of those proceedings continued on 5 and 6 July, 1983. Some evidence was taken but a number of preliminary objections (to which reference will be made later) were made on behalf of the applicant. Decision on the preliminary objections was reserved. On 20 July, 1983 the first respondent rejected the objections taken and held that he had jurisdiction to proceed in the matter for the reasons he then gave. On 21 July, 1983 the applicant filed his application in this Court for review of the decisions of the first respondent made on 20 July, 1983 under the Judicial Review Act. He also sought an interim stay of proceedings which I declined to grant, for discretionary reasons, on 6 October, 1983.

The preliminary points taken by the applicant and rejected by the first respondent were as follows:

1. Regulation 42 of the Banking (Foreign Exchange) Regulations is invalid. The source of power to make this regulation is s.39(2)(q) and regulation 42 does not "prescribe" a penalty for that purpose (see Borowski v. Veales Automotive Engineers Pty. Ltd. (1979) WAR 33).

2. Although the information was exhibited on 10 December, 1982, the consent of the Treasurer required by s.70 of the Banking Act, 1959 was not obtained for some days thereafter. It follows that, by reason of the provisions of s.70(1), the proceedings are bad (see McDonnell v. Smith (1918) 24 C.L.R. 409).

3. The information is bad because the informant was not an officer of the Reserve Bank, these being proceedings brought under regulations administered by that Bank (cf. Crimes Act, 1914, s.13).

In dismissing the application for stay, I expressed no view whatever on the validity of any of these points, finding it unnecessary to do so.

At the hearing of the committal proceedings, the prosecution sought to tender evidence of certain admissions said to have been made by the applicant as to the offence charged in the course of his cross-examination in bankruptcy proceedings heard by McGregor, J. on 7 December, 1982. The applicant objected to the tender of this material on the ground that the alleged confessions were not "voluntary" (see Cleland v. The Queen (1982) 57 A.L.J.R. 15; cf. The Queen v. West (1974) 18 F.L.R. 33). The first respondent, in a reserved decision given on 7 October, 1983, decided to admit the material into evidence. This decision is sought to be reviewed in proceedings No. G317 of 1983 (by consent, both applications have been heard together).

In Lamb v. Moss (unreported, 12 October, 1983) a Full Court of this Court decided that in the exercise of its jurisdiction under the Judicial Review Act, the Court may review "decisions" or "conduct" of a stipendiary magistrate in committal proceedings. In the course of its reasons (at pp.21-22), the Court (Bowen, C.J., Sheppard and Fitzgerald, JJ.) adverted to the existence of the analogous discretion in the Supreme Court to decline to interfere in committal proceedings by granting declaratory relief. Their Honours referred to policy considerations underlying the reluctance of the court to interrupt such proceedings but indicated a number of exceptions to the general rule:

"In Bacon v. Rose . . . Street C.J. in Eq. . . . considered that, if proceedings had been instituted in the face of an express statutory provision, it would be appropriate to make a declaration. In Sankey v. Whitlam . . . it was held proper to declare that offences charged were not known to the law. In Bourke v. Hamilton . . . Needham J. held that a declaration should be made if it was clearly established that no examining magistrate, properly directing himself as to the law, could conclude that a prima facie case had been established on any charge."

Later in their reasons, their Honours described the scope of the discretion given to the Court under the Judicial Review Act (at pp.25 et seq.). In their conclusion, their Honours said (at p.64):

"Further, the judge to whom the proceedings are remitted will have a discretion to refuse relief as we have pointed out. The exercise of that discretion will not necessarily call for a full investigation of the merits: see Ward v. Williams (supra, at p.514). In our opinion, the authorities referred to above provide a sound guide with respect to the principles to be applied. The power to make an order of review under the Act in respect of committal proceedings should be exercised only in 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 committal for trial and commitment to prison pending trial: cf. Sankey v. Whitlam, supra, per Mason J. at p.82; compare R. v. Governor of Brixton Prison; ex parte Scharaks (1964) A.C. 556; R. v. Governor of Brixton Prison; ex parte Armah (1968) A.C. 192."

In the present case, the committal proceedings have reached the point where the first respondent has found that a prima facie case has been established but it is not yet known whether the applicant will call evidence in those proceedings (cf. May v. O'Sullivan (1955) 92 C.L.R. 654).

I turn now to deal with the preliminary objections to jurisdiction raised by the applicant. In doing this, I have assumed, I think correctly, that objections of this character are properly justiciable under the Judicial Review Act: they raise questions of the type considered in Bacon v. Rose and in Sankey v. Whitlam, so that they fall within one or other of the categories of exception to the general discretionary rule that the court should not intervene in the course of committal proceedings.

The validity of Regulation 42 of the Banking (Foreign Exchange) Regulations

By s.39(2)(q) of the Banking Act, 1959, the Governor-General is empowered to make regulations:

" . . . (q) prescribing penalties not exceeding a fine of $100,000, or imprisonment for a period not exceeding 5 years, for offences against the regulations made under this section; . . ."

The applicant submits that regulation 42 is beyond power insofar as it fails to "prescribe" a penalty of the kind required by the Act. He says that the regulation lacks specificity and wrongly delegates to the prosecution the decision as to the amount of the penalty by granting the prosecution the power to determine whether the matter proceeds on indictment or summarily.

In my opinion, the reference to "prescribe" in the present context should be treated as having its ordinary meaning, that is, "to lay down authoritatively" (see Lane v. Soutar (1954) Tas. S.R. 36 at p.37; see also Re The Motor Vehicles Distribution Scheme Agreement (1961) 1 ALL E.R. 161 at p.174). Whether a particular regulation "prescribes" a penalty within the meaning of s.39(2)(q) of the Banking Act, 1959 is, of course, a matter of construction of the regulation, and, in my opinion, a regulation which fixes a maximum fine or imprisonment for a maximum term does so "prescribe" for the purposes of the Banking Act, 1959 (cf. Brudenell v. Nestle Company (Australia) Ltd. (1971) V.R. 225 at 233-5; City of New York v. Hexamer 69 N.Y.S. 198 at 203; Thompson v. Schermerhorn 55 American Decisions 385). The fact that a different maximum penalty is imposed where the proceedings are brought on indictment rather than summarily cannot, in my view, touch upon its validity.

The applicant relies, in this connection, upon the decision of the majority of the Full Court of the Supreme Court of Western Australia in Borowski v. Veales Automotive Engineers Pty. Ltd., supra. The Worker's Compensation Act, 1912 (W.A.) empowered the Governor to make regulations "prescribing all matters and things, which by the provisions of this Act are required or permitted to be prescribed . . .". Regulation 58(a) provided that a request that a case be stated under s.29(9) of the Act should be made (inter alia) in writing filed with the Registrar within fourteen days from the decision. Regulation 61 gave the Board a general power to enlarge time. It was held that the time prescribed by regulation 58 could not be enlarged by resort to regulation 61. Burt, C.J. said at p.34):

"The question which arises out of those provisions and out of a case in which a party to proceedings before the Board requested that it state a case outside the period of 14 days from the giving of its decision is, as formulated in the case now before us: 'Did the Board err in holding that it did not have the power to extend the time within which the applicant might request that a case be stated for the decision of the Full Court of the Supreme Court of Western Australia pursuant to s29(9) of the said Act?'

In my opinion the answer to that question is 'No'. Regulation 58(a) is a regulation which relates specifically and in terms to s29(9) of the Act and it prescribes the time for the purposes of that section. The time is in that way fixed by the statute. In my opinion that regulation when made, and for the purposes of that sub-section, exhausted the power of the Governor to make regulations prescribing a matter -- in this case time -- required by the Act to be prescribed. Regulation 61 is not part of that prescription. It is not a regulation which prescribes time. It is a regulation which empowers the Board to extend time. If that power is exercised and the time appointed by the rules is extended the extended time is not a time 'prescribed by the rules' within the meaning of s29(9) of the Act. It is a time prescribed ad hoc by the Board."

In my opinion, this reasoning does not assist in the present case. What was decided in Borowski was that, as a matter of construction of the statute and regulations, one regulation should be interpretated as an exhaustive code exclusively governing the relevant subject matter. No such question arises in the present case. Here, the Act required that the regulations prescribe a penalty for offences and as Dixon, J. observed in King Gee Clothing Co. Pty. Ltd. v. The Commonwealth (1945) 71 C.L.R. 184 at p. 194 et seq., the question of the validity of delegated legislation in this area is not so much one of certainty but whether the regulation is beyond power. There is no express prohibition to be found in the terms of the statute which would prohibit the statement of a penalty in the form adopted in regulation 42. Nor, in my view, is there any basis for implying any such limitation. In the absence of any such prohibition or limitation, there is no reason to suggest that the regulation is beyond power on that account.

As I understand it, the real gravamen of the applicant's complaint here is that a regulation, structured as regulation 42 is, confers upon the prosecution a discretion as to the form in which proceedings might be instituted, which discretion might lend itself to abuse. In this regard, the applicant submits that it is quite wrong that the prosecution should have the choice, in effect, of the range of penalty in a particular case since, he submits, a person charged might be exposed to a different range of penalties if he were prosecuted summarily than if he were prosecuted on an indictment.

In my view, none of these matters can bear upon the validity of the regulation. No doubt, an important discretion is vested in the prosecution in these matters, but the courts are not powerless to deal with the situation, if an abuse occurs, by the exercise of appropriate controls (see Regina v. Canterbury and St. Augustin Justices; ex parte Klisiak (1982) 1 Q.B. 398 at pp.411 and 415; Barton v. The Queen (1980) 147 C.L.R. 75; Connelly v. Director of Public Prosecutions (1964) A.C. 1254 at p.1347; cf. The King v. Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 C.L.R. 128; Hall v. Braybrook (1955) 95 C.L.R. 620 at p.638; Vorenberg "Decent Restraint of Prosecutorial Power" (1981) 94 Harvard Law Review 1521 at p.1529). But, in any event, even if the worst were to happen from the point of view of a person charged and he were to be prosecuted upon indictment, the penalty prescribed by the regulation is a maximum penalty and if an offence were established against him that was trivial only, this fact would be taken into account in assessing what is an appropriate penalty in the same way as would have been the case if he had been prosecuted summarily.

In my view, regulation 42(1) is within power.
The Treasurer's consent

In support of this branch of the argument, the applicant submits that sub-s.(1) of s.70 is the governing provision in the circumstances of his case; and that sub-s.(3) of s.70 should be read down so as to operate only to confer immunity from suit upon an officer or officers involved in the arrest; in the result, he says, s.70(1) applies and s.70(3) has no relevant operation in the present case with the consequence that the proceedings are bad, having been instituted in the face of an express statutory prohibition.

It is common ground that the point turns on the proper construction of s.70(3) and, in particular, on whether it has the limited operation contended for by the applicant. In my view, the evident purpose or object of s.70(3) is to enable an arrest or the issue and execution of a warrant for an arrest and remand to take place where the circumstances of the case so require in the absence of the Treasurer's consent at that stage. It is true that sub-s.(1) is not expressed to be subject to the provisions of sub-s.(3) but, in my opinion, that is not material: strictly speaking, sub-s.(3) is not an exception to sub-s.(1) but rather is in the nature of a transitional provision where the urgency of the case requires. This is, I think, indicated by the terms of sub-s.(4) which contemplates that if proceedings are not continued within a reasonable time, the person charged should be able to apply for a discharge.

Here also, the real gravamen of the applicant's complaint is the possibility of abuse of the power conferred by sub-s.(3). Indeed, he contends that there was no emergency at all in the present case. The second respondent joins issue with him on this point but its resolution is immaterial for present purposes. The question here is one of power and thus of statutory construction rather than abuse of power if the power exists.

In my opinion, subject to the protection conferred by s.70(4), proceedings may be instituted by the charge and arrest of a person or by the issue and execution of a warrant for his arrest and by his remand, notwithstanding that the Treasurer's consent has not then been obtained. The language of s.70(3) explicitly so provides and I can perceive no basis for reading its terms as having any other object or purpose. If, as the applicant contends, its purpose is merely to grant immunity from suit, then one would have expected the provision to say so.

It follows that the second preliminary objection raised by the applicant also fails.
Identity of the informant

Section 13 of the Crimes Act, 1914 provides:

"Unless the contrary intention appears in the Act or regulation creating the offence, any person may-

(a) institute proceedings for the commitment for trial of any person in respect of any indictable offence against the law of the Commonwealth; or

(b) institute proceedings for the summary conviction of any person in respect of any offence against the law of the Commonwealth punishable on summary conviction."

The applicant argues that a contrary intention does "appear" in the Banking Act, 1959 or regulations. In this connection, he submits that a distinction should be drawn between a requirement that a contrary intention be expressed and a requirement that such an intention merely "appear". However, even if the applicant were correct in that submission, there is no warrant for suggesting that any contrary intention "appears" (in any extended sense of the word) in the Act or regulations. All that emerges from the statutory context is that the Reserve Bank is concerned in the administration of the Act and the regulations: their enforcement is quite a different matter (see, e.g. Watson v. Lee (1979) 144 C.L.R. 374; Green v. Jones (1979) 2 N.S.W.L.R. 812). In my view, no contrary intention within the meaning of s.13 is apparent. It follows that this objection also fails.

The admissibility of the confessional material

The applicant contends that the magistrate erred in law in admitting into evidence in the committal proceedings some damaging evidence given by him before McGregor, J. in other proceedings in this Court. In essence, he argues that this material was not "voluntary" in the sense described in Cleland, supra; alternatively, the principle established in West, supra, applies.

This branch of the argument raises many complex questions of law and fact. At the factual level alone, it is necessary to examine closely many pages of the transcript of the proceedings before McGregor, J. for the purpose of weighing the considerable body of oral evidence given by the applicant on the point. Further, an attack is made upon the motives of those instructing senior counsel then appearing for the Deputy Commissioner of Taxation: an ulterior purpose is suggested. And to complicate matters even further, in answer to the claims now made, the second respondent, as an alternative defence, tenders the whole of the evidence before the first respondent so as to establish, it is said, that the confessions are not essential to the prosecution case, so that the admissions are of academic interest only, in that the case against the applicant can be established aliunde. (The tender by the second respondent included not only the transcript of the whole of the oral evidence in the proceedings but also a mass of documentary material.)

In my view, the factual complexity of this issue and the sheer volume of the evidence relied on are such that there are real difficulties in the Court's intervening at this stage even if the applicant were right on his substantive argument. For one thing, although questions of credit and even motive arise for determination, I have not had the opportunity of seeing and hearing the witnesses. For another, complicated issues as to foreign law are involved: the transaction impugned concerns the sale of real estate in Vienna. Even more important, it is at least possible, without finally determining the point, that the confessional material is not essential to the prosecution case which might well be established aliunde. In any event, as a matter of principle, the Court is reluctant to intervene where the question is one of the admissibility of evidence (see Ward v. Williams (1954) 92 C.L.R. 496 at p.514).

In my view, this branch of the applicant's argument differs from the preliminary objections already dealt with. Those objections raise jurisdictional issues of a very different character, being questions similar to those arising in Bacon v. Rose and Sankey v. Whitlam which were recognised in Lamb v. Moss as proper exceptions to the general rule against interference in committal proceedings.

In my opinion, without expressing any view on the ultimate merits of the applicant's argument, this point falls within the scope of the general rule and for the reasons advanced in Lamb v. Moss, it is not, I think, appropriate that the Court should intervene in committal proceedings on a question of admissibility of evidence. In the exercise of my discretion, I decline therefore to grant the relief sought in this connection.

The application is dismissed with costs in each case.