Clyne, Peter Leopold v Scott, Eardley Murray (S.M.)

[1984] FCA 91

Re: PETER LEOPOLD CLYNE
And: EARDLEY MURRAY SCOTT (S.M.) & ORS.
No. G50 of 1984
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
NEW SOUTH WALES DISTRICT REGISTRY
Sheppard J.

CATCHWORDS

Administrative law - judicial review - application for review of decision to commit for trial - review of evidence - consideration of degree to which committing Magistrate ought to be satisfied of guilt of an accused person.

Banking (Foreign Exchange) Regulations, reg. 40.

Justices Act 1902 (N.S.W.), s. 41

HEARING

SYDNEY

#DATE 28:3:1984

ORDER

The application be dismissed.

The applicant pay the costs of the second and third respondents of the application.

JUDGE1

On 10 December 1982 the applicant was charged with an offence against reg. 40 of the Banking (Foreign Exchange) Regulations. That regulation, so far as it is relevant, provides that a person shall not make to any officer of the Reserve Bank any statement, whether oral or in writing, relating to any act, transaction, matter, or thing to which the provisions of the Regulations apply which he knows to be untrue. The charge, so far as it is material, is as follows:-

"Peter Clyne . . . at Sydney on or about 7th June 1981 (did) make a false statement to an officer of the Reserve Bank of Australia in writing relating to a transaction to which the Banking (Foreign Exchange) Regulations applied which he knew to be untrue in that he wrote to Mr. A. J. Webster an officer of the Reserve Bank of Australia that a receipt dated 20th May 1981 in the amount of one million six hundred thousand schillings being payment in full for Apartment No. 25, Franzensgasse 26, Vienna A-1050 was a settlement receipt signed by the vendor Dr. Arthur Oostwegel as required."

On that charge the applicant was committed for trial on 26 January 1984. The Magistrate did not give reasons for his decision to commit the applicant for trial. He said:

"In this case there will be a committal for trial. It is not the practice to make a summing up or any assessment, or to give any reasons for this and I do not propose to depart from that practice. If I were of the opposite opinion I would, of course, give a reasoned judgment. Mr. Clyne, I am of the opinion that the evidence is sufficient to warrant you being put on your trial."

Because of apparent typographical errors in the transcript I have edited somewhat what the Magistrate is reported to have said.

The depositions went on to record the fact that the applicant was committed for trial at the District Court in its criminal jurisdiction to be held at the Sydney current sittings or such other time and place as the Attorney-General might appoint.

The applicant seeks the review, pursuant to the provisions of the Administrative Decisions (Judicial) Review) Act 1977, of the Magistrate's decision to commit him for trial. The evidence led against him in support of the charge is essentially as follows.

Firstly, there is a letter dated 30 January 1981 written by the applicant from his Vienna office to the Manager, Exchange Control Department, of the Reserve Bank. In his letter he referred to previous correspondence concerning the purchase of an apartment in Vienna and continued:-

"Subject to your approval, I have now entered into a contract to purchase an apartment in Vienna, and copy of the contract is enclosed. You will note that clause 7 makes the contract conditional, inter alia, upon your consent.

Please treat this contract, therefore, as conditional and subject to your approval; and you are also asked to treat this letter as my formal application for approval, both to the purchase itself and to the remittance of the purchase price."

There was then some detailed reference to the transaction. Amongst other things, the applicant said:-

"The contract is in fact a final contract, though subject to your approval and some other matters."

He mentioned again that a copy was enclosed. He concluded his letter by saying:-

"As I will be in Vienna until early March, I would be grateful if you would write to me in Vienna (Hotel Sacher, Vienna A-1010, A Austria), and also to my attorney, and indicate that consent is given to the transaction and to the remittance of the necessary funds. I would be grateful if you could deal with the matter as soon as possible."

On 12 February 1981 the Reserve Bank replied to the applicant's letter. Amongst other things, it said:

"Authority under the Banking (Foreign Exchange) Regulations is given, valid for two months, for:

1. you to enter into the proposed contract covering the purchase of apartment no. 25, 26 Franzensgasse, Vienna, from Dr. Arthur Oostwegel, Vienna, for a consideration of OS 1,600,000 for use by you as a residence for minimum periods of six months each year during your visits to Austria;

2. the provision of OS 1,600,000 for remittance from Australia to Creditanstalt Bankverein, Vienna, for payment to the vendor in settlement for the purchase of the abovementioned apartment.

The above authority is given subject to the following conditions:

(a) a copy of the settlement receipt confirming payment to the vendor will be furnished to the Reserve Bank as soon as available; . . . "

On 7 June 1981 the applicant, this time from his office in Sydney, wrote to the Reserve Bank. His letter included the following statement:-

"I refer to your letter dated the 12th February 1981, condition (a), and now enclose copy of the settlement receipt signed by the vendor, Dr. Arthur Oostwegel, as required."

With the letter was a receipt which is the receipt mentioned in the charge which said:-

"RECEIVED from Dr. Peter Clyne the sum of one million six hundred thousand Schillings (OS 1.600.000) being payment in full for apartment No. 25, Franzensgasse 26, Vienna A-1050. Dated this 20th day of May 1981."

The receipt purports to bear Dr. Arthur Oostwegel's signature.

In those documents the essence of the charge can be seen, subject to one further matter which needs to be added in, namely, that it is common ground that in fact no sale of the apartment to the applicant ever took place. So much is made clear in evidence which he gave before McGregor J. in proceedings under the Bankruptcy Act 1966 on 7 December 1982. In order to understand the full effect of that evidence both from the respondents' and the applicant's points of view, it is necessary to read it as a whole. There are many pages and it is not appropriate to set these out in this judgment, but I refer to some of them.

At page 37 appears the question and answer:-

"Well, let me just ask you a direct question. First of all, do you still own your apartment? -- No, I never did own an apartment."

At page 44 there appears the question and answer:

"Would you look at a letter, a copy letter, dated 7 June 1981 together with copy enclosure.

(Those being the letter and receipt earlier referred to):

"Do you agree that that is a photostat copy of a letter sent by you and dated 7 June 1981 to Mr. Webster of the Exchange Control Department of the Reserve Bank? -- Yes, I do."

The applicant was then shown the letter and referred specifically to the paragraphs to which I have referred and to the receipt. The following questions and answers then appear:-

"Well, what about that receipt, was that a fake? -- It was not the truth.

HIS HONOUR: I am sorry, I did not hear you? -- Well, sir, I do not know about a fake but it was not the truth. I did not pay Dr. Oostwegel 1,600,000 schillings at that time or at any other time."

At pages 55 to 56 the following appears:-

"You do however agree that you sent a false document to the Reserve Bank in connection with the apartment? -- I do.

And the false document indicated that you had in fact bought the apartment when you had not? -- Yes.

You do agree that you sent to the Reserve Bank a false document concerning the apartment which indicated that you had bought it when you had not? -- That I had paid for it when I had not.

And, indeed, which indicated that you had bought it when you had not? -- No, I do not agree with that. If buying means entering into a contract to buy, I had entered into a contract to buy, and that was on foot at the date of this letter.

The false document I am talking about is the receipt signed by your very old friend saying that he had received from you the purchase money in settlement of the purchase? -- May '81? Yes, I am not disputing that that is false in the sense that it shows money having been paid which had not been paid. I am disputing as false in the sense of suggesting that I had never bought the apartment when in fact I had."

In answer to a question from his Honour, the applicant said:-

"Buying, as I understand it, means entering into a binding contract to buy. I entered into a binding contract to buy the apartment in January. There were negotiations about whether that would proceed or not all through the year but as of the date of this document in May I had in fact bought the apartment and I might very well have completed it but in order to satisfy the condition about furnishing a receipt as soon as possible, I do admit that I furnished a receipt showing the payment of moneys which at that time, except for 10 per cent deposit, had not been paid. In that sense and in that sense only is it a false document."

At pages 62 to 64 there is an extensive explanation by the applicant of the transaction which I have taken into account but which I do not set out here. At page 65 the following appears:-

"So you simply, for whatever reason, decided to send the bank in June 1981 a document which you had obtained Dr. Oostwegel's signature to, which you knew would mislead the bank? -- Yes, I would have to admit that."

I should say, before proceeding to refer to other evidence, that because of the prosecution's reliance upon the applicant's answers to questions asked him before McGregor J., the question may arise as to whether his admissions, if they be admissions - by that I mean admissions in the eyes of a jury - were obtained voluntarily, using that in the technical sense in which that expression is understood in the criminal law.

In an earlier application under the Judicial Review Act which was heard at first instance by Beaumont J., that matter was specifically relied upon. In his judgment which was delivered on 7 December 1982 Beaumont J. said, amongst other things:-

"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' . . .

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 futher, 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."

His Honour concluded:-

"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 matter which had been dealt with by Beaumont J. went on appeal but the question of voluntariness was not the subject of argument before the Full Court (Clyne v. Scott, 8th March 1984) which heard and dismissed that appeal. The matter was discussed in argument before me and the applicant declined to put any further submissions based on absence of voluntariness, but he has made it clear that he will rely on that matter if the matter ever goes to trial; in other words, he will then contend before the trial judge that the answers to the questions made by him before McGregor J. ought not to be allowed to be used as admissions against him because they were not made voluntarily. He has accepted, so far as judicial review is concerned, apparently, the view which was propounded by Beaumont J.

I would express the opinion that the applicant is correct in taking the approach he has and that it is a matter which is for the trial judge, if there be a trial. It is not a matter which can be managed or dealt with in an application of this kind.

Other evidence which was relied upon in support of the prosecution is to be found in two books written by the applicant. The first of these is entitled, New Adventures in Tax Avoidance. It was not tendered in the prosecution's case but by the applicant himself. The preface to the book is dated June 1980. Chapter 53 of the book is entitled, Fifteen Legal Ways to Take or Send Money Out of Australia. At p. 275 under the heading, "Send out $250,000 to buy a home," the following appears:-

"Reserve Bank officials informed me that since I spend at least half my time each year in Austria and Switzerland, they would give favourable consideration to an application for enough funds to buy a home there.

This would apply to anyone who spends much of his time overseas, and would prefer to have his own cottage, villa or apartment instead of spending a fortune on rent."

There follows some further material to which it is not necessary to refer.

The second book is entitled, "New Tax Dodgers' Dictionary: How to Out-Bluff, Out-Hassle and Out-Litigate the Fiscal Fiend from A to Z." The preface to that book is dated February 1981, the same month as the month in which the Reserve Bank's letter giving approval to remit the funds in this case was written.

Under the phrase, "Exchange Control," the following appears at pp. 46-7:-

"Exchange Control Planning, like international tax planning, has become an important new science. Some ways to get larger sums out of Australia are:
1. Apply to me. (See Peter Clyne, How to contact)
2. Smuggle cash into your secret account (See Australian banking secrecy)
3. Use Australian travellers cheques (See Travellers cheques) which, for the time being, you can bank overseas.
4. Take gold bullion. This doesn't require approval, though coins do, including Krugerrands.
5. Build up a case for getting approval, eg. pretend to be buying real estate in Vienna, then cancel the deal; or buy a Rembrandt, then cancel the deal by agreement with the vendor; or buy a picture by an unknown artist. Who is to say you are paying too much? And, for a modest 10 per cent, the unknown artist will transmit the other 90 per cent to your Swiss account. You get a picture, as well] These and other methods are best arranged professionally, and I can help."

There was argument as to the admissibility of these texts before the Magistrate and in any trial which may take place. For reasons similar to those given by Beaumont J., I do not regard this as the place to determine this question. It seems to me that there is much to be said for the view that the books, particularly the second one, are relevant documents but I would not express a concluded view. So much will depend on how the trial runs and, even if the work is not admissible in the first instance, the course of the trial may be such as to make it admissible because of something that arises therein. All I am concerned to say is that it seems to me the material in the two books to which I have referred was material proper to be taken into account by the Magistrate if he thought it relevant to take it into account.

The applicant made a number of submissions and related them to various paragraphs of sub-sec. 5(1) of the Judicial Review Act. I do not need to go into the detail of how they were connected up. It is sufficient if I mention what they were. The first was based almost entirely on further material and evidence which was led or placed before the Magistrate by the applicant and the effect that it was said that this material should have had upon his attitude to the committal.

The second submission was based upon the Magistrate's attitude towards receiving this material, which was originally objected to by counsel for the prosecution but subsequently allowed to be tendered by consent. I shall deal with these submissions separately but before I do so, I should dispose of some further submissions. Firstly, there was raised a question as to whether the charge had been put in a way in which it seems to me it can be put on the basis of the prosecution evidence before the Magistrate. The applicant suggested that it had been put by the prosecution in some three different ways, none of which was the obvious way which related the letters of 12 February 1981 and 7 June 1981 and also the receipt enclosed with that letter to the terms of the charge.

I have not made an exhaustive examination of the transcript before the Magistrate to see whether what the applicant says is right or not. I do not regard it as necessary to do so. It seems to me, bearing in mind the words of the charge, that the essential evidence in support of it is to be found in the documents to which I have earlier referred, in the evidence before McGregor J. and the two texts from which I have quoted extracts. I would reject therefore any submission based on the allegation that the charge as laid and as understood by me was never put to the Magistrate nor understood by him in that way. I would have thought myself it very difficult to find any other basis for the charge.

It was also said that there was no, or at least no sufficient, evidence to suggest that there had been established before the Magistrate the fact that the statement relied upon was known by the applicant to be untrue. It was suggested that it was no more than misleading. But, if one takes the answers before McGregor J., it is difficult to reach that conclusion.

I should also mention, before going to the matters principally relied upon by the applicant, that the prosecution places great weight on the evidence of an Austrian attorney, Dr. Drahos, and upon his analysis of the contractual and other documents which are in evidence. To me, those matters are on the periphery of this case. By this case, I mean this application for judicial review. I do not gainsay that they may not be relevant at the trial in helping to establish the element of the offence which requires the Crown to prove that the applicant knew the statement relied upon to be untrue.

An analysis of Dr. Drahos' evidence and the exhibits to which he refers has been handed to me by counsel for the respondents. I have left it with the papers but I have not thought it necessary for the purposes of this case to go through it and deal with it in detail. The essential elements in the charge are those to which I have referred and the essential elements in support of them are as I have indicated.

What the applicant sought to do in support of his first submission was to refer me to a number of documents or statements made by him and by others. The first three of those are of a similar kind. They consist of a statement made on the applicant's behalf to the Magistrate on 13 December 1982 by senior counsel. Without going to the statement in detail, it gives reasons why the applicant was not, after all, guilty of the charge made against him. The second of the statements relied upon is contained in an affidavit sworn by the applicant on 29 December 1982 which was used in an application for bail before Waddell J. of the Supreme Court of N.S.W. Again, it contains an exculpatory account of the various steps that went to make up the transaction in an endeavour to suggest that the applicant was not guilty of any offence.

The third is a statement made to the Magistrate on 7 October 1983 pursuant to sub-sec. 41(4) of the Justices Act 1902 (N.S.W.). That subsection provides that where the evidence for the prosecution has, in the opinion of the magistrate, established a prima facie case, he shall say to the defendant,

"Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you desire to do so but whatever you say will be recorded and may be given in evidence against you at your trial."

The subsection also provides that the magistrate must inform the defendant and give him clearly to understand that he has nothing to hope from any promise or favour and nothing to fear from any threat which may have been held out to him to induce him to make any confession or admission of his guilt but that whatever he then says may be given in evidence against him upon his trial notwithstanding such promise or threat. It is then provided that whatever the defendant says shall be taken down and read over to him.

In accordance with that section the applicant made a lengthy statement explaining the nature of the transaction into which he had entered and again seeking to exculpate himself from guilt for the offence which was charged. The statement was not of course made on oath. Some discussion took place in the argument as to whether that was a statement which the magistrate ought to take into account when he comes to make the decision which is provided for in sub-sec. 41(6) notwithstanding the use of the word "evidence" in that subsection.

I think the better view is, although I express no concluded view, that a committing magistrate is bound to take the statement into account. Otherwise it would seem that the statement has no purpose except insofar as it may contain an admission which can be used at the defendant's trial. The statement is lengthy. I do not feel the need to set it out, but I have read it and taken it myself generally into account.

Then, apart from those statements the applicant referred to some further documents. The first of these was a letter dated 19 February 1981 from the applicant in Vienna to the Manager of the A.N.Z. Bank asking for the remission of part of the sum for which he had received the consent of the Reserve Bank. The letter said, amongst other things, "The remainder is being remitted later through another bank." That is to be seen in another document which is relied upon by the applicant which is a formal application "for Overseas Payment" made to the Reserve Bank. The purpose of the payment was said to be final payment for strata unit purchased in Vienna.

I should say at this point that there seems to be some difficulty in reconciling the figures, that is to say the amounts which were sent for the purpose of completing the transaction and the amounts required to complete it, but in these proceedings it is unnecessary for me to come to any conclusion as to the significance, if any, that that matter has.

It was then pointed out that the bank to which the moneys had been remitted was also the vendor's, Dr. Oostwegel's bank, and that the money was to be held by the Bank according to the applicant, in escrow pending the completion of the transaction.

The applicant called in his aid the passage in the book, New Adventures in Tax Avoidance, to which I have referred. He referred also to some correspondence he had had with the Reserve Bank in the latter months of 1980 in which he was told it was likely that he would receive consent for the remission of money to Austria if he wished to buy an apartment in which to live whilst he was in that city.

There was then referred to a letter from the Viennese Bank purporting to be signed by its Manager, dated 7 January 1982 - clearly enough that should be 7 January 1983 - addressed to the applicant. Amongst other things the letter said that the writer of the letter was the manager of the relevant branch of the Bank and that the applicant had been a client of the branch for some years and a client of other branches managed by the writer in Vienna. It continued:-

"3. I am aware of the fact that since 1978 you have been looking for a home or apartment in Vienna, and from time to time I have advised you in this regard.

4. I am also aware that in early 1981 you entered into an agreement to buy Dr. Arthur Oostwegel's apartment in Franzensgasse 26, Vienna V., apartment No. 25, and you asked my advice in relation to the price being paid for this apartment (OS 19600.000 --).

5. Dr. Arthur Oostwegel has also banked with this branch of the Creditanstalt for some time, and so has his wife, Marjon Lambriks. Both Dr. Oostwegel and Marjon Lambriks are personally known to me."

There was reference to a passbook and to the remissions to which I have referred, and the letter continued:-

"8. I am also aware that subsequently the purchase of the apartment did not proceed, and that the funds set aside for the apartment were used by you to produce a recording entitled "WHAT I DID FOR LOVE", which was produced at your expense by the Baumgarten Studio, Vienna, with Eva Serning (soprano) and the Orchestra of the Vienna Volksoper, conducted by Professor Franz Bauer-Theussl."

The letter concluded with the statement:-

"I am ready to give evidence along the lines of this letter if suitable arrangements can be made."

There was a further letter from the Bank to the applicant dated 3 May 1983 in which it was said, amongst other things:-

"In May 1981 the sum of AS 1.600.000 -- was lodged with this bank in escrow, for payment to Dr. Arthur Oostwegel when certain formalities were completed.

The sale did not proceed, and AS 160.000 -- was released to the vendor (Dr. Oostwegel), while the residue of AS 1.400.000 -- was released to you with Dr. Oostwegels permission.

On your instructions, we have now transferred the equivalent of $90.000 -- Australian, being the balance not needed for the purchase of the apartement, from your account with this bank in Vienna, to your solicitors, Messrs. C. Wantrup & Associates, 316 Queen Street, Melbourne. The transfer took place by telex last week."

There was then tendered to the Magistrate what appears to be a formal declaration, perhaps in the nature of what would be termed a statutory declaration in Australia, by Dr. Oostwegel. I do not set it out but it confirms what the applicant has said in his various explanations and what is contained in the Viennese Bank's letters which I have earlier set out.

Finally there was relied upon certain correspondence between the applicant and the Commonwealth Crown Solicitor and also a document as to which there seems to have been some uncertainty as to whether it was before the Magistrate. It appears to be a certificate or statement by a Viennese or Austrian authority which was intended to go towards explaining how it was that Dr. Oostwegel did not have title in the apartment but was nevertheless in a position to direct its transfer from the registered owner, a Mr. Schulz, to the applicant. Amongst other things, the document which is dated 20 December 1977 said:-

"Mr. Hans Werber Schulze has sold his shares to Dr. Arthur Oostwegel. Allgemeine Heimstattengenossenschaft declares that it does not wish to exercise its right of pre-emption, and hereby expressly consents, without the necessity for any further formalities, but not at its cost, that its right of pre-emption may be regarded as extinguished, and that such extinguishment may be registered in relation to Mr. Hans Werner Schulze's 195/6592 shares in property EZ.269, KG. Margarethen."

In support of his submission the applicant referred me to a number of authorities on the degree of satisfaction a Magistrate should have before committing for trial. These included three recent decisions of judges of the Common Law Division of the Supreme Court of New South Wales. None of the cases is as yet reported. They are, in order of date, Wentworth v. Rogers (Begg J., 31 August 1983); Gorman v. Fitzpatrick (Foster J., 23 September 1983); and Williams v. Spautz (Hunt J., 14 October 1983). Each of these deals with this question.

In Williams' case there is an extensive analysis of the problem by Hunt J. and reference by him to a decision of the House of Lords, Armah v. Government of Ghana (1968) A.C. 192, especially at pp. 229, 252, 253 and 261. Hunt J. reached the conclusion, firstly, that in deciding whether to commit or not a magistrate was bound to take into account not only the prosecution's evidence but also evidence produced by the defendant; and, I would add, the statement, if any, made by him pursuant to sub-sec. 41(4). He also concluded that the proper test of whether a magistrate should commit was whether, in the light of the evidence produced by the defendant, the magistrate himself thought it probable that the defendant had committed the offence.

Reference was made by Hunt J. to an article which he described as helpful - and I would agree with him - written by Dr. Seymour, "The Criteria Governing the Decision to Commit for Trial in Australia," (1979) 3 Crim. L.J. pp. 3 - 12.

Hunt J. indicated general agreement with what had been said by Begg J. in Wentworth v. Rogers, but it seems to me that there may be some difference of emphasis between them. In essence Begg J. said (at p. 15) that sub-sec. (6) imposes a duty on the magistrate to weight the evidence himself and to decide whether in the light of that evidence the accused should be committed for trial. If he thinks there is reasonable evidence of guilt he should commit; if not, he should discharge. In the end of course one has to look at the statute itself and really I think that is what Begg J. has endeavoured to do. For that reason, I would respectfully prefer his statement to those of the other judges, albeit that it may be there is little difference between what Hunt J. and Begg J. have said.

It is to be observed that there are really two parts or legs to the relevant portion of sub-sec. 41(6). It provides:-

"(6) When all the evidence for the prosecution and for the defence has been taken the Justice or Justices shall -

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) if he or they is or are of opinion that the evidence is sufficient to warrant the defendant being put on his trial for an indictable offence, or if the evidence raises a strong or probable presumption of the guilt of the accused, commit the defendant for trial."

There is a question of whether there is any difference between the two legs or whether the second is simply explanatory of the other. This is a matter that has a history but it is a matter which I do not feel the need to go into in this case. In my opinion the Magistrate, upon the evidence before him, was well entitled to reach the conclusion that the evidence was sufficient to warrant the defendant being put on his trial for the offence which was charged. The evidence and other material relied upon by the applicant before the Magistrate is not of a kind which would make his decision to commit unreasonable or erroneous in point of law. Indeed, it is difficult to see how it cuts down the prosecution's case in any respect.

The second submission was based upon the Magistrate's attitude to the reception of the material upon which the applicant wished to rely. As I have mentioned, the prosecution at first objected to its admissibility. It then changed its mind and agreed to the evidence going in. It is to be seen from a perusal of the transcript that the Magistrate was unwilling to receive it and had grave doubts as to whether it was admissible and as to whether he should receive it, notwithstanding the prosecution's willingness that it should be admitted.

The matter reached its culmination on page 87 of the transcript before the Magistrate on 25 January 1984, but it is not possible to understand fully the complaint which the applicant seeks to make unless one reads the previous 20 pages or so of the transcript. At page 87 the Magistrate said in relation to one of the documents being tendered by consent:-

"Well, I suppose in view of the nature of the proceedings, you can probably consent to anything. The rules of evidence should be followed in these proceedings as far as possible, but as it is by consent I will admit it as purported statement by Mr. Austrigo."

The reference to Mr. Austrigo is obviously a reference to Dr. Oostwegel. The document being tendered was Dr. Oostwegel's statement to which I have earlier referred.

The attitude which the Magistrate was there adopting was apparently his attitude to much, if not all, the other material as well. One can see that to a degree in what follows on succeeding pages.

After the evidence was in, there were lengthy addresses by the applicant and by counsel for the prosecution. Both the applicant and counsel made extensive reference to all the evidence, including the evidence which the applicant had eventually got in. The Magistrate, as appears from the transcript, was not communicative as to the submissions which were put to him. He listened to them attentively but one does not find in the transcript the exchange of views that one might find in the case of some other magistrates or some judges.

What the applicant seeks to say is that because of the Magistrate's original attitude to the admission of the documents, he adopted an attitude which was such as to show that he would not take any notice of the material. He received it perfunctorily and recorded it, but made it clear that he regarded it as inadmissible and would not look at it.

I find it difficult to accept that submission in the light of the fact that the Magistrate listened, as I have said, attentively to two lengthy addresses in the days that followed. Much of what was said in the course of those addresses was directed to what was in the material relied upon by the applicant. Counsel for the prosecution, as he was entitled to do, submitted that it was not material which carried any weight or any great weight. The Magistrate, in accordance with the practice which apparently exists in New South Wales in relation to committals, did not give reasons. He is not bound under the Judicial Review Act to give reasons - see para. 13(11)(c) and para. (e) of Schedule 2 of the Act.

I can find no indication in the proceedings before the Magistrate, notwithstanding the attitude that he adopted when the documents were tendered, which would indicate that he has not given the material relied upon by the applicant proper consideration. I would accordingly reject his second submission.

I would further say that in relation to the charge as I understand it, and as I have explained it earlier in this judgment, it seems to me - and really, the applicant conceded this morning that this had a good deal of force in it - that a lot of the material on which he relies does not go to the question of his guilt or innocence of the charge but to circumstances mitigating against his being severely punished if he be put upon his trial and is found guilty.

For all the reasons I have given, I have reached the conclusion that this application must fail and is dismissed. I take it, Mr. Rofe, you ask for costs. (Discussion ensued).

HIS HONOUR: I order the applicant to pay the second and third respondents' costs of the application. Do I need to say anything about the Magistrate's costs?

MR. ROFE: No.

HIS HONOUR: If there is no other matter I will adjourn.