DPP (Cth) v His Honour Judge Wodak

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION

Not Restricted

No. 5576 of 1998

DIRECTOR OF PUBLIC PROSECUTIONS

(COMMONWEALTH)	Plaintiff
v
HIS HONOUR JUDGE WODAK & ORS.	Defendants

____________

JUDGE:	BEACH, J.
WHERE HELD	MELBOURNE
DATE OF HEARING:	13 MAY 1998
DATE OF JUDGMENT:	13 AUGUST 1998
MEDIA NEUTRAL CITATION	[1998] VSC 15

____________

CATCHWORDS:

Criminal law - Legal aid - Application pursuant to s.360A of Crimes Act 1958 in respect of Commonwealth charge - Jurisdiction of County Court to entertain application - Section 69(3) of Judiciary Act 1903 (Cth.)

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	B. Martin Q.C. with	Director of Public
A. Hicks	Prosecutions (Commonwealth)
For the Fourthnamed	P. Hanks with	Victoria Legal Aid
Defendant	D. Neal

HIS HONOUR:

On 13 October 1996 Philip Chee Ming Ng was arrested in Melbourne and charged with a number of drug offences pursuant to both Commonwealth and State Regulations relating to the importation of heroin into Australia.
On 30 October 1996 the Commonwealth Director of Public Prosecutions (the D.P.P.) obtained an order from Hampel, J. pursuant to the provisions of the Proceeds of Crime Act 1987 (Cth.) restraining Ng from dealing with his property including a sum of $599,910 located at Ng's residence shortly following his arrest.
On 31 July 1997 Ng was committed to stand trial in the County Court at Melbourne on a number of charges brought pursuant to the provisions of the Customs Act 1901 (Cth.) and the Crimes Act 1958 (Vic.)
On 22 September 1997 Ng applied to this Court for a variation of the restraining order which had been made on 30 October 1996, to allow him access to the restrained property for the purpose of paying his reasonable legal expenses in defending the criminal charges and paying the reasonable living and education expenses of his family. The application was made pursuant to the provisions of s.43 of the Proceeds of Crime Act, the relevant sub-sections of which read:
"43(3) A restraining order against a person's property may be made subject to such conditions as the court thinks fit and, without limiting the generality of this, may make provision for meeting, out of the property or a specified part of the property, all or any of the following:
(a)        the person's reasonable living expenses (including the reasonable living expenses of the person's dependants (if any)) and reasonable business expenses;
(b)        the person's reasonable expenses in defending a criminal charge;
(c)         a specified debt incurred by the person in good faith (being a debt to which neither paragraph (a) nor (b) applies).

(4)

A court shall not make provision of a kind referred to in subsection (3) unless it is satisfied that the defendant cannot meet the expense or debt concerned out of property that is not subject to a restraining order."

On 31 October 1997 an indictment was filed in the County Court alleging that between 1 April 1996 and 14 October 1996 Ng and two co-accused named Li and Bowhay had conspired together and with one Wanchai Khojaranusat and divers other persons to import into Australia not less than a commercial quantity of the narcotic substance heroin contrary to s.233B(1)(cb) of the Customs Act 1901.
On 20 November 1997 a Judge of this Court dismissed Ng's application for a variation of the restraining order on the ground that Ng had failed to discharge the onus cast upon him by s.43(4) of the Proceeds of Crime Act.
On 25 February 1998 Ng made a further application to the Court for a variation of the restraining order of 30 October 1996. The basis for the application was the same as on the earlier occasion. On 6 March 1998 the application was dismissed again on the ground that Ng had failed to discharge the onus cast upon him by s.43(4).
By 1 April 1998 Ng had exhausted the possibilities of obtaining legal assistance for his trial from Victoria Legal Aid, all his applications in that regard having been refused.
On 6 April 1998 Ng, who has remained in custody since his arrest, informed His Honour Judge Wodak at a hearing conducted by audio/visual line that he wished to make an application to the County Court pursuant to the provisions of s.360A of the Crimes Act 1958 for an order that Victoria Legal Aid provide assistance to him.
The section reads:
"360A. Adjournment or stay of trial

(1) Subject to sub-section (2) and despite any rule of law to
the contrary, if -

(a) a person is committed for trial; or
(b) a presentment has been filed -

the fact that an accused has been refused legal assistance in respect of a trial is not a ground for an adjournment or stay of the trial.
(2) If a court is satisfied at any time before or during the
trial that -

(a)

it will be unable to ensure that the accused will receive a fair trial unless the accused is legally represented in the trial; and

(b)

the accused is in need of legal assistance because he or she is unable to afford the full cost of obtaining from a private practitioner legal representation in the trial -

the court may order Victoria Legal Aid to provide assistance to the accused, on any conditions specified by the court, and may adjourn the trial until such assistance has been provided.

(3)

Despite anything in the Legal Aid Act 1978, Victoria Legal Aid must provide legal representation in accordance with an order under sub-section (2)."

The hearing of the application commenced before Judge Wodak on 9 April 1998. Ng appeared in person, the Crown, the D.P.P. and Victoria Legal Aid were represented by counsel.
It was argued on behalf of Victoria Legal Aid that by virtue of the provisions of ss.68(1) and (2) and s.69 of the Judiciary Act 1903 (Cth.), His Honour Judge Wodak had no jurisdiction to entertain the application. Those sections read:

"68. Jurisdiction of State and Territory courts in criminal cases

(1) The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:
(a)        their summary conviction; and
(b)        their examination and commitment for trial on indictment; and
(c)         their trial and conviction on indictment; and
(d)        the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith;

and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section.

(2) The several courts of a State or Territory exercising
jurisdiction with respect to:

(a) the summary conviction; or
(b) the examination and commitment for trial on indictment; or
(c) the trial and conviction on indictment;
of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.
...
69.        Indictments

(1) Indictable offences against the laws of the Commonwealth shall be prosecuted by indictment in the name of the Attorney-General of the Commonwealth or of such other person as the Governor-General appoints in that behalf.
(2) Any such appointment shall be by commission in the Queen's name, and may extend to the whole Commonwealth or to any State or part of the Commonwealth.
(2A) Nothing in subsection (1):
(a)        affects the power of the Director of Public Prosecutions to prosecute by indictment in his or her official name; or
(b)        affects, or shall be taken to have affected, the power of a Special Prosecutor to prosecute by indictment in his or her own name;

indictable offences against the laws of the Commonwealth.

(3) Any person committed for trial for an offence against the laws of the Commonwealth may at any time within fourteen days after committal and before the jury is sworn apply to a Justice in Chambers or to a Judge of the Supreme Court of a State for the appointment of counsel for his or her defence. If it be found to the satisfaction of the Justice or Judge that such person is without adequate means to provide defence for himself or herself, and that it is desirable in the interests of justice that such an appointment should be made, the Justice or Judge shall certify this to the Attorney- General, who may if he or she thinks fit thereupon cause arrangements to be made for the defence of the accused person or refer the matter to such legal aid authorities as the Attorney-General considers appropriate. Upon committal the person committed shall be supplied with a copy of this subsection."

What was said in that regard is that s.360A of the Crimes Act is inconsistent with the provisions of s.69(3) of the Judiciary Act and that in that situation s.69(3) prevails and the Court had no jurisdiction to hear and determine an application by Ng under s.360A.
Having heard argument in relation to the matter, Judge Wodak upheld the submission and ruled that there was no jurisdiction in the County Court to entertain an application under s.360A where an accused stands charged with only a Commonwealth offence. His Honour then adjourned the matter to 15 April to enable argument to be presented to him as to whether Ng's trial should be held with Ng being unrepresented, or whether the trial should be stayed until representation for Ng was secured. Following a hearing that day and on 17 April 1998 His Honour made the following ruling in the matter:
"It follows then that I am satisfied, on the balance of probabilities, that Mr. Ng is charged with a serious offence that he is indigent and that, through no fault of his own, he is unable to obtain legal representation. I am satisfied that for these reasons he would be unable to have a fair trial if he is not legally represented. The existence of exceptional circumstances in Mr. Ng's case was not contended for either by Mr. Woinarski or by Mr. Silbert. I would not regard the fact of the making of a restraining order or its continuation nor would I regard Mr. Ng's unsuccessful application to Victoria Legal Aid as constituting such exceptional circumstances. Accordingly, I will stay the trial of Mr. Ng until such time as he is provided with legal representation necessary for a fair trial or with resources for such representation or until further order."
On 27 April 1998 the D.P.P. filed an originating motion in this Court whereby he seeks the following relief:

"1. An order in the nature of certiorari that the ruling of the Firstnamed Defendant made on 9 April 1998 be set aside and quashed.
2. A declaration that the Firstnamed Defendant has jurisdiction to entertain an application under section 360A of the Crimes Act 1958 (Vic.)
3. An order in the nature of mandamus that the Firstnamed Defendant hear and determine the application made by the Thirdnamed Defendant under section 360A of the Crimes Act (Vic.)
4.          An order in the nature of certiorari that the ruling of the Firstnamed Defendant made on 17 April 1998 that the Thirdnamed Defendant is 'indigent' within the meaning of Dietrich v. R. (1992) 177 CLR 292 be set aside and quashed.
5.          An order that this proceeding be fixed for speedy hearing.
6.          Such further or other relief as this Honourable Court may think fit."

Originally the defendants to the original motion were His Honour Judge Wodak, the County Court of Victoria and Ng. However, by order of Master Evans made 30 April 1998 Victoria Legal Aid was added as a defendant to the proceeding.
On 6 May 1998 Victorian Legal Aid gave notice that the proceeding involved a matter under the Constitution or involving its interpretation within the meaning of s.78B of the Judiciary Act. The following is the paragraph in the notice relevant for present purposes:

"2. The matters are:

(a)

Whether in a trial of Commonwealth offences in the County Court of Victoria, subsection 68(2) of the Judiciary Act 1903 (Cth.) ('subsection 68(2)') would be a valid law of the Commonwealth to the extent that it purported to take up and adopt section 360A of the Crimes Act 1958 (Vic.) ('section 360A') as a law of the Commonwealth because:
(i) the making of an order pursuant to section 360A would involve the exercise of a power that is administrative in character, not being a power incidental to the judicial power of the Commonwealth;
(ii) the vesting of such a power in the County Court is inconsistent with the separation of the judicial power of the Commonwealth effected by chapter III of the Commonwealth Constitution;
(iii) the effect of subsection 68(2) and section 360A would be to discriminate between those persons charged with Commonwealth offences in Victoria and those persons charged with Commonwealth offences in other States, contrary to the requirement that the judicial power of the Commonwealth be administered so as not to confer on alleged offenders against Commonwealth laws different rights to legal representation dependent on the locality of the court by which the offender is tried;
(iv) the effect of subsection 68(2) and section 360A would be to single out a State instrumentality and impose a special burden on that instrumentality which special burden is not imposed on any other State instrumentality or on the community generally.

(b) Whether subsection 68(2) should be construed, consistent with section 15A of the Acts Interpretation Act 1901 (Cth.), so as not to authorise a court exercising federal jurisdiction to make an order pursuant to section 360A."

As required by the provisions of Order 19 of the Supreme Court Rules a copy of the notice was served on the Commonwealth Attorney-General and the Attorney- General of each State. However, the only parties who appeared when the originating motion came before me for hearing were the Commonwealth Director of Public Prosecutions, Victoria Legal Aid and Ng.
The first aspect of the matter I propose to deal with is the proposition that s.360A of the Crimes Act is inconsistent with the provisions of s.69(3) of the Judiciary Act.
The argument advanced on behalf of Victoria Legal Aid concerning this issue is that where a State law is picked up by s.68(1) of the Judiciary Act it is given effect not of its own force as a State law but by force of the Judiciary Act as a Federal law. In this regard see Lamb v. Moss (1983) 49 A.L.R. 533 at 561. Accordingly, if s.360A is picked up by virtue of the provisions of s.68(1), effectively one has two potentially contradictory mechanisms for the provision of representation to indigent persons. In that situation s.69(3) prevails and to the extent that the provisions of s.360A are inconsistent with the provisions of s.69(3), they are invalid.
I am by no means persuaded that that is the case.
In my opinion s.360A(2) is able to operate quite independently of s.69(3) without in any way interfering with the operation of s.69(3).
In the first place s.69(3) only permits an application to a court for the appointment of counsel to conduct a defence if the application is made within 14 days after the committal. Once the 14 day period has expired s.69(3) has no further operation. Section 360A(2) on the other hand is expressed to operate at any time before or during trial.
In the second place s.69(3) does not empower a court to direct that legal representation be provided for an accused. It empowers the Court to certify to the Attorney-General that it is desirable in the interests of justice that such an appointment should be made. It is then for the Attorney-General if he or she thinks fit, to cause arrangements to be made for the defence of the accused person or refer the matter to such legal aid authorities as the Attorney-General considers appropriate. The Attorney-General is given a discretion in the matter. On the other hand s.360A(2) empowers the Court to order that Victoria Legal Aid provide assistance to an accused if the Court is satisfied that it will be unable to ensure that the accused will receive a fair trial unless he is legally represented.
In my opinion the two provisions are quite independent of each other and are not inconsistent with each other.
If the argument advanced on behalf of Victoria Legal Aid was to prevail it would have the effect of denying to a person charged only with a Commonwealth offence, the protection of a State law designed to ensure that he or she received a fair trial. I find such a result quite repugnant. It follows that in my respectful opinion His Honour should have rejected Victoria Legal Aid's submission.
Although the constitutional issues were not debated before Judge Wodak, it was argued on behalf of Victoria Legal Aid that as they go to the question as to whether the County Court has jurisdiction to hear and determine a s.360A application in the circumstances of this case, that is where an accused person is charged only with a Commonwealth offence, it is necessary that I consider them and make a determination in respect of them. Whilst I have reservations as to whether it is necessary for me to determine the issues having heard debate concerning them, I propose to express my views in relation to them, albeit briefly.
The first two contentions, namely that the making of an order pursuant to s.360A would involve the exercise of a power that is administrative in character, not being a power incidental to the judicial power of the Commonwealth and that the vesting of such power in the County Court is inconsistent with the separation of the judicial powers of the Commonwealth effected by Chapter III of the Constitution, may be considered together.
Perhaps one of the clearest statements concerning judicial power is that of Dixon, C.J., McTiernan, Fullagar and Kitto, JJ. in The Queen v. Kirby; ex parte Boiler-Makers' Society of Australia (1955) 94 C.L.R. 255. At p.278 Their Honours said:
"The judicial power, like all other constitutional powers, extends to every authority or capacity which is necessary or proper to render it effective. The judicial power of which s.71 speaks is not to be defined or limited in any narrow or pedantic manner. With respect to the matters comprised within ss.76, 77, 78 and 79, it rests with the Parliament to make laws affecting its content or exercise. Legislative powers too are involved in some of the provisions of ss.71, 72, 73 and 74. And it must not be forgotten that s.51(xxxix) expressly empowers the Parliament to make laws with respect to matters incidental to the execution of any power vested by the Constitution in the federal judicature. What belongs to the judicial power or is incidental or ancillary to it cannot be determined except by ascertaining if it has a sufficient relation to the principal or judicial function or purpose to which it may be thought to be accessory. On more than one occasion of late attempts have been made in judgments in this Court to make it clear that a function which, considered independently, might seem of its own nature to belong to another division of power, yet, in the place it takes in connection with the judicature, falls within the judicial power or what is incidental to it: see Queen Victoria Memorial Hospital v. Thornton (1953) 87 CLR 144 at p.151; Reg. v. Davison (1954) 90 CLR 353 at pp.366-370. There are not a few subjects which may be dealt with administratively or submitted to the judicial power without offending against any constitutional precept arising from Chap. III. It may be too that the manner in which they have been traditionally treated or in which the legislature deals with them in the particular case will be decisive: see Davison's Case (1954) 90 CLR 353, at pp.369, 370, 376-378, 382-384, 388, 389."

In my opinion a court which makes an order pursuant to s.360A(2) is exercising judicial power or a power incidental to the judicial power.
In the first place the function is being exercised by a court which makes a binding and authoritative decision and one which is not subordinate to the view of the executive. In the second place the function is exercised in accordance with the procedures and safeguards applicable to the exercise of a judicial power. In the third place the function is exercised by the Court as part of its judicial power in presiding over a criminal trial. Entrenched in the Constitution is the right of every accused person to a fair trial. When discharging its duty to ensure that an accused receives a fair trial, a court is exercising a judicial function. Finally, the function is not inconsistent with the separation of judicial power. The function does not undermine the independence of the judicial branch from the other branches of government. There is no aspect of the function that would undermine public confidence in the independence of the judiciary. It follows therefore that in my opinion neither contention can be sustained.
The third contention advanced on behalf of Victoria Legal Aid is that the effect of s.68(2) and s.360A(2) is to discriminate between those persons charged with Commonwealth offences in Victoria and those persons charged with Commonwealth offences in other States.
A proposition not dissimilar to that was discussed by the High Court in Leeth v. The Commonwealth of Australia (1992) 174 C.L.R. 455. That case was concerned with the fixing of non-parole periods for Commonwealth offenders in accordance with different State laws. At p.467 the majority of the Court (Mason, C.J., Dawson and McHugh, JJ.) said:
"In Williams v. The King [No. 2] (1934) 50 CLR 551 at p.560 Dixon J. said of s.68 that it disclosed a policy 'to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice'. He added that, in his opinion, it was 'no objection to the validity of such a provision that the State law adopted varies in the different States' ibid at p.560; see also Reg v. Loewenthal; ex parte Blacklock (1974) 131 CLR 338 at p.345; Reg v. Murphy (1985) 158 CLR 596 at p.617. Thus the administration of the criminal law of the Commonwealth is organized upon a State by State basis and there may be significant differences in the procedures applying to the trial of a person charged with an offence against a Commonwealth law according to the State in which he is tried. And if a person is convicted of a federal offence and sentenced to a term of imprisonment, he will ordinarily serve that term in a State prison in the State in which he is convicted. Prison systems differ significantly from State to State, but that is something which, in relation to federal offenders, is contemplated by s.120 of the Constitution.
There is no general requirement contained in the Constitution that Commonwealth laws should have a uniform operation throughout the Commonwealth. There is, of course, the implication drawn from the federal structure erected by the Constitution that prevents the Commonwealth from legislating in a way which discriminates against the States by imposing special burdens or disabilities upon them or in a way which curtails their capacity to exercise for themselves their constitutional functions (see Queensland Electricity Commission v. The Commonwealth (1985) 159 CLR 192)."
At p.468 Their Honours continued:
"The Constitution plainly envisages the continuation of separate State legal systems and, by empowering Parliament under s.77(iii) to invest any court of a State with federal jurisdiction, provides a means whereby the Commonwealth may participate in those systems. In investing State courts with federal jurisdiction, the Commonwealth must take the courts as it finds them, notwithstanding the differences that exist from State to State (Le Mesurier v. Connor (1929) 42 CLR 481; Kotsis v. Kotsis (1970) 122 CLR 69 at pp.88, 109; The Commonwealth v. Hospital Contribution Fund (1982) 150 CLR 49 at p.64; Harris v. Caladine (1991) 172 CLR 84 at pp.92, 109, 117, 138, 158)."
In my opinion it is clear from the passages in Leeth to which I have referred that it is within the power of the Commonwealth to adopt different State procedural laws concerning the provision of legal assistance to a person charged with a Commonwealth offence. I therefore reject the contention.
The final proposition is that the combined effect of s.68(2) and s.360A would be to single out a State instrumentality, namely Victoria Legal Aid, and impose a special burden on that instrumentality which is not imposed on any other State instrumentality. I am unable to accept that proposition.
The authority relied upon by counsel for Victoria Legal Aid in support of the proposition is the decision of the High Court in Queensland Electricity Commission and Others v. The Commonwealth of Australia (1985) 159 C.L.R. 192. In that case the Court held that unless it is otherwise apparent from the nature of a Commonwealth legislative power or the language in which it is conferred, a Commonwealth law will be invalid if it discriminates against the States or their agencies (whether or not they represent the Crown or the State) in that it imposes some special burden or disability on them which is not imposed on persons generally. However, as Gibbs, C.J. said at p.206:
"Although laws which infringe the implied limitation are often described in the authorities as 'discriminatory' it would be wrong to think that the word, when used in this context, is intended to suggest that it is not competent for the Parliament to make a distinction, even an adverse distinction, between various States. Obviously enough, laws may distinguish between the different needs of the various States."
And as Dawson, J. said at p.260:
"A Commonwealth law may not unduly interfere with the exercise by
a State of its constitutional or governmental functions."
In my opinion the effect of s.68(2) of the Judiciary Act in picking up and applying s.360A is not to impose the will of the Commonwealth in a discriminatory manner. It is to take the State of Victoria, as it finds it and apply the State's procedural rules to the trial of persons charged with Commonwealth offences. There is no undue burden imposed on Victoria Legal Aid because under the agreement between the Commonwealth and the State of Victoria dated 7 November 1997, the Commonwealth provides funds which Victoria Legal Aid is obliged to use for grants of legal assistance in matters arising under Commonwealth law.
The final matter I propose to deal with is the attack which the D.P.P. makes upon His Honour's finding that Ng is "indigent" and through no fault of his own is unable to obtain legal representation. In respect of that ruling the D.P.P. seeks an order in the nature of certiorari that the ruling be set aside and quashed. In Craig v. State of South Australia (1995) 131 A.L.R. 595 the High Court considered the scope of certiorari and at p.599 said:
"Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and 'error of law on the face of the record'. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the 'record' of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record."
By virtue of the provisions of s.10 of the Administrative Law Act 1978 His Honour's reasons for his decision in this regard are taken to be incorporated in the record. I content myself by saying that having read His Honour's reasons, I can find no error of law in them so far as this aspect is concerned. Despite the earlier decisions of two Judges of this Court to the contrary, it was open to His Honour on the evidence presented before him, to find that as at 17 April 1998 Ng was indigent.
In my opinion the appropriate course to adopt in this matter is to quash the ruling made by His Honour on 9 April 1998 that there is no jurisdiction in the County Court to entertain an application under s.360A where an accused stands charged with only a Commonwealth offence, to declare that the County Court has that jurisdiction, to order that His Honour hear and determine Ng's application under s.360A of the Crimes Act, and to quash His Honour's order staying Ng's trial. However, before formally pronouncing such orders, I shall give counsel an opportunity to consider my reasons for judgment and at a time convenient to them re-list the matter for any further debate concerning the form of the orders and to hear any submissions concerning the question of costs.

---

[1998] VSC 15

13 August 1998