Emanuele, G. v Cahill, R.J

Re: GIUSEPPE EMANUELE
And: RONALD JOHN CAHILL and ALLAN JOHN DAU
No. ACT G16 of 1987
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fisher(1), Davies(1) and Lockhart(1) JJ.

CATCHWORDS

Administrative Law - Judicial Review - Criminal proceedings pending before Magistrates Court of the Australian Capital Territory for offence punishable either on indictment or on summary conviction - Application to stay proceedings indefinitely as an abuse of process - whether primary Judge erred in failing to take into account findings of Magistrate - whether primary Judge took an irrelevant consideration into account.

Administrative Decisions (Judicial Review) Act 1977: s. 5. Crimes Act 1914: ss. 12 & 73.

HEARING

SYDNEY

#DATE 28:8:1987

Counsel and solicitors for the appellant: F.J. Purnell instructed by Messrs. Crowley & Chamberlain.

Counsel and solicitor for the first respondent: L. Vardanega instructed by the Australian Government Solicitor.

Counsel and solicitor for the second respondent: B. Sully Q.C. with S.L. Walmsley instructed by the Director of Public Prosecutions.

ORDER

The appeal be dismissed; and

The appellant pay the costs of the respondents of the appeal.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal from a judgment of a single Judge of this Court (Neaves J.) dismissing an application by the appellant under s. 5 of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") for an order of review in respect of a decision made by the first respondent, the Chief Magistrate of the Australian Capital Territory. The decision was made on 4 November 1986 when the first respondent refused to stay criminal proceedings brought against the appellant in the Magistrates Court of the Australian Capital Territory (A.C.T.) by the second respondent, a Superintendent of the Australian Federal Police, as informant. The learned primary Judge also dismissed an objection to the competency of the application made by the second respondent. The ground of the objection was that the decision of the first respondent is not a decision to which the Judicial Review Act applies in that it is neither a decision of an administrative character nor a decision under an enactment within the meaning of sub-s. 3(1) of the Judicial Review Act.

As the facts and relevant statutory provisions are set forth in the judgment of the primary Judge we shall refer to them only so far as is necessary for the purpose of dealing with the submissions on the appeal.
The appellant stands charged in the Magistrates Court of the A.C.T. with an offence against sub-s. 73(3) of the Crimes Act 1914 (Cth) ("the Crimes Act"). It is alleged that on 28 November 1985 the appellant, in order to influence or affect Anthony Robert Hedley in the exercise of his duty as a Commonwealth officer, gave him property, namely, $10,000. The offence carries a maximum penalty of imprisonment for two years, but it is not expressed to be an indictable offence. Consequently it is punishable either on indictment or on summary conviction (Crimes Act: sub-s. 12(1)). The Magistrates Court, being a court of summary jurisdiction, may either determine the proceedings, or commit the applicant for trial (sub-s. 12(2)). If the Magistrates Court determines the proceedings it may not impose a longer period of imprisonment than one year in respect of the offence (sub-s. 12(3)). The course which the proceedings will take is a matter for the Magistrates Court after hearing submissions from the parties.
The offence alleged arose out of events connected with the sale by tender of a shopping complex in the A.C.T. known as the Belconnen Mall. The appellant, having arrived in Canberra on 27 November 1985, was arrested on the following day shortly after he had lodged a tender for the purchase of the complex. A record was made on video tape of the appellant upon his arrival at Canberra airport, of some proceedings in Mr. Hedley's office on 28 November 1985 when the appellant was present, of the counting of money in the office of the second respondent on the afternoon of that day, and of the opening of the tender box. Audio recordings were also made of various conversations that took place on 27 and 28 November 1985.
Transmitting devices were placed in three rooms at the Lakeside International Hotel for the purpose of enabling members of the Australian Federal Police to monitor conversations taking place there and to record those conversations on audio tape. Mr. Hedley wore a transmitting device when meeting with the appellant and further recordings were made on audio tape. Other transmitting devices were placed in Mr. Hedley's office and in the motor vehicle used by him. By these means material was recorded on audio tapes; some of which were described as large master tapes and the remainder as small or standard cassette tapes.
Arrangements were made by the second respondent for the large master audio tapes to be copied onto standard cassette tapes. The copying took place at various times and the resulting large number of cassettes were delivered to the custody of certain police officers. Transcripts of certain of the conversations in the English language were prepared progressively. The task of endeavouring to produce reliable transcripts progressed intermittently between February and July or August 1986.
On 2 December 1985 the solicitors for the appellant enquired of the Director of Public Prosecutions ("the Director") whether his office was prepared to give an undertaking that any video and audio tapes would not "be edited or erased in any way so as to delete or misrepresent any conversations". That assurance was given by letter dated the following day.
On 3 December 1985 proceedings were commenced on behalf of the appellant in the Supreme Court of the Australian Capital Territory for orders for the preservation of the video and audio tapes, but those proceedings were discontinued upon the above undertaking being given by the Director. On 9 December 1985 the appellant was remanded to appear in the Magistrates Court on 21 February 1986.
Correspondence was subsequently exchanged between the solicitors for the appellant and the Director in which the solicitors sought from the Director copies of tapes and transcripts of interviews or material relevant to the case and copies of other documents relevant to the prosecution. The Director said, amongst other things, that a full brief of evidence in the matter was being prepared by the Australian Federal Police for submission to the Director and he expected the brief would be received early in 1986.
On 21 February 1986 the appellant was further remanded, until 12 May 1986. Repeated requests were made on behalf of the applicant for copies of the tapes and transcripts. The proceedings were adjourned whilst the question of the appellant's entitlement to these documents was being determined. On 12 May 1986 the appellant was further remanded until 10 October 1986. That date was subsequently vacated and the hearing was fixed to commence on 3 November 1986. That date was also vacated and the hearing was then fixed to commence on 23 March 1987. On 7 July 1986 what was described by Detective Senior Sergeant Phillips, who assisted the second respondent in the investigation of the appellant, as "the full brief of evidence" was delivered to the Director.
On 6 August 1986 a telephone conversation took place between Mr. Loftus, a solicitor acting for the appellant, and Mr. Bradfield, an officer of the Director. According to Mr. Loftus, Mr. Bradfield said that the tapes were with the investigating officers, that there was a shortage of staff, but that arrangements had been made for them to be copied as soon as possible and that he expected copies of the tapes would be ready for the appellant within the week. Mr. Bradfield also said that he would have to obtain instructions about making the transcripts available. He said that he realised that the defence had been disadvantaged by not having the transcripts and undertook to obtain instructions and telephone Mr. Loftus that afternoon.
On 22 August 1986 the solicitors for the appellant wrote to the first respondent giving notice that on 4 September 1986 the appellant would apply to the Court for a stay of the proceedings in the Magistrates Court on the ground that they constituted an abuse of process and on the further ground that the prosecution was being conducted unfairly to the appellant in that he was being denied natural justice. It was also stated, in the alternative, that the appellant would apply for a stay of proceedings for as long as the informant or Director failed to provide to the appellant's legal advisers copies of tapes, transcripts of tapes and certain other documents. Notice of the proposed application was given to the Director by letter of the same date.
On 4 September 1986 the first respondent commenced to hear the application foreshadowed in the letter of 22 August 1986. At the conclusion of the hearing on that date of certain preliminary issues the first respondent reserved his decision.
On 15 September 1986 the first respondent determined the preliminary issues in the appellant's favour. The further hearing of the application was adjourned to a date to be fixed. The hearing of the application for a stay of proceedings resumed on 24 September 1986 and continued on the following day. At the conclusion of the hearing the first respondent reserved his decision. On 4 November 1986 the first respondent gave his decision dismissing the application for an indefinite stay of the proceedings. All the material sought by the appellant's legal advisers had by that time been made available to them other than a limited amount of material in respect of which a claim for privilege was made. Reasons for the first respondent's decision in summary form were given orally and later a more detailed written statement of his reasons was made available to the parties.
In his written reasons the first respondent held that the Magistrates Court had jurisdiction to stay indefinitely criminal proceedings pending before it on the ground of abuse of process, regardless of whether the pending proceedings were committal or a summary trial. No decision was made by the first respondent as to whether the hearing of the charge against the appellant was to proceed as a committal or as a summary trial. The view was taken that the consideration of that question was premature.
The primary Judge first considered the objection to the competency of the application under the Judicial Review Act. His Honour overruled the objection to competency. He held that the objection to competency in so far as it rested on the proposition that the decision the subject of review, was not a decision of an administrative character failed. He examined the nature of the proceedings which were before the Magistrates Court and held that no decision had yet been made as to the course the proceedings would follow and that, until a decision was made the offence would be tried summarily in the Magistrates Court, the proceedings must as a matter of practicality be conducted by way of a preliminary enquiry. His Honour said that the application to stay the proceedings indefinitely must be seen against that background. He said that the application was to be regarded as ancillary to the proceeding then pending against the appellant; proceedings which in his view were properly described as committal proceedings. His Honour concluded that, as it is now well established that some decisions made in the course of such proceedings are reviewable under the Judicial Review Act, the decision in the present case was so reviewable.
The primary Judge then dealt with the second ground of objection to competency, namely, that the decision could not properly be described as a decision "under an enactment". His Honour said that the question was whether, as a matter of substance, the decision had a sufficiently close connection with the legislative provision to make it appropriate to speak of it as having been made "under" that provision in the sense in which that word was understood by this Court in Australian National University v. Burns (1982) 43 ALR 25 per Bowen C.J. and Lockhart J. at p 31. His Honour held that the decision which was sought to be reviewed was a decision "under an enactment" within the meaning of that expression in the definition of "decision to which this Act applies" in sub-s. 3(1) of the Judicial Review Act. The sufficiently close connection arises because the power to make the decision has its source in the provisions of the Magistrate's Court Ordinance 1930 (A.C.T.) which established that Court. His Honour therefore overruled the objection to competency.
His Honour then turned to consider the substantive application.
The primary Judge found that the first respondent clearly acted on the basis that the granting of an indefinite stay of criminal proceedings was a serious matter which was an extreme step to be taken only in exceptional circumstances.
His Honour noted that, although the first respondent considered that the history of the matter did not reflect creditably upon either the Australian Federal Police or the Director's Office and although he was critical of the way in which the case had so far proceeded, he made no finding, as he had been urged to do, that there had been a deliberate withholding of the material from the appellant's legal advisers so as to cause unfairness and amount to oppression. Indeed, His Honour said that what was said in the reasons of the first respondent was, on a fair reading of it, inconsistent with such a finding.
His Honour noted that much of what was put on behalf of the appellant, although presented in terms of the grounds set out in s. 5 of the Judicial Review Act, amounted to a submission that the first respondent had reached the wrong decision on the material before him and that his Honour should substitute his view of the matter. Essentially the appellant contended before his Honour that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made (Judicial Review Act: sub-s. 5(1)(e)) in that the first respondent in the exercise of the power took irrelevant considerations into account (sub-s. 5(2)(a)) and failed to take relevant considerations into account (sub-s. 5(2)(b)). It was also contended that the exercise of the power was so unreasonable that no reasonable person could have so exercised the power (sub-s. 5(2)(g)). His Honour rejected all the submissions.
The primary Judge dealt with the submission on behalf of the appellant that the first respondent had erred in law in two respects. First, it was said that he misinterpreted the authorities and applied too stringent a test in holding that it is only in a rare case that a court will take the extreme step of granting an indefinite stay of criminal proceedings on the ground of abuse of process. His Honour held that he was unable to accept that the first respondent approached the task otherwise than in accordance with the principles laid down in the authorities. In particular, he could not accept the submission that the first respondent regarded the power as one which he would never exercise. Secondly, it was said that the first respondent erred in law in holding that there was no legal obligation on the Director or the second respondent to make the material sought available to the appellant's legal advisers. His Honour rejected that submission.
In the result the appellant wholly failed to establish his claim before the primary Judge and his Honour dismissed the application. He ordered that the appellant pay two-thirds of the second respondent's costs and ordered that the appellant pay the costs of the first respondent as a submitting party.
An appeal was then brought to this Full Court from the judgment below.
The appellant argued before us that the primary Judge erred in dismissing the application for review on the merits. The second respondent argued, in support of his Notice of Contention, that his Honour erred in overruling the objection to competency.
The appeal was heard by us on Wednesday, 15 July 1987. We were then informed by counsel that the proceedings before the first respondent had been adjourned to a date in August and that some weeks had been set aside for the hearing of the matter. In these circumstances we announced our decision, namely, that the appeal must be dismissed with costs and said that we would publish our reasons later. These are those reasons.
The questions of law which arise from the objection to competency were not argued very fully before us. As we have reached the conclusion that the appeal must fail in so far as it attacks the primary Judge's decision dismissing the application on its merits, we think it preferable not to deal with the questions raised by the appeal in so far as they relate to the overruling of the objection to competency. We turn then to the submissions of the counsel for the appellant that the primary Judge erred in his findings on the substantive application.
It should be noted that the grounds set out in the notice of appeal attacking the decision of the primary Judge on the substantive application are expressed in very general language and are of little assistance in determining the particular respects in which the findings of the primary Judge are said to be erroneous. Some clarification was given in the written outline of submissions handed to the Court at the commencement of the argument of counsel for the appellant, but, like the argument before the primary Judge, much of the argument advanced on behalf of the appellant before us really amounted to submissions that the first respondent had reached the wrong decision on the material before him and that this Court should substitute its own view of the matter.
It was submitted on behalf of the appellant that the primary Judge erred in failing to take into account findings of the first respondent that the delay by the prosecuting authorities and changes of attitude about making available copies of tapes and transcripts of the various discussions in which the appellant was involved with the prosecution, led to disadvantages in the proper presentation of the defence of the appellant; disadvantages from which he may not be able to recover. The submission had its genesis in certain statements of the first respondent in his reasons for decision, namely:

"The history of this matter which appears to display a lack of investigative resources does not reflect well on the AFP (Australian Federal Police) or the DPP (Director of Public Prosecutions). It is regrettable that preparation of transcripts, checking of audio tapes for a case as significant as this one, would take so many months. There is no doubt that these delays and changes of attitudes have led to a disadvantage for the defence. The defence may well have instituted more active enquiries but (sic) more active preparation for their case if they had known that these delays were likely to occur."

The first respondent also said a little later in the concluding paragraphs of his reasons for decision:

"As mentioned above there are some disadvantages to the defence from which they may not be able to recover."

Those statements of the first respondent must be a reference, as we perceive it, to evidence given by Mr. Norman, the solicitor principally acting for the appellant in these proceedings. The first respondent summarised the relevant evidence of Mr. Norman before him who stated that, when he heard certain of the tapes in mid-August 1986, he was aware for the first time of the details of material conversations between the appellant and Mr. Hedley. Mr. Norman also stated that the tapes alerted him to various investigatory steps that had not previously been considered and suggested lines of enquiry for the defence of the appellant that he may have wished to pursue. Mr. Norman argued that, had the information been received earlier, enquiries could have commenced several months earlier. The effect of the delay, said the first respondent, was that recollections of people would not be as good as they may have been months earlier if the defence had wished to pursue those lines of enquiry. Mr. Norman also gave evidence before the first respondent that until he obtained further information about the tapes, particularly those relating to comments by Mr. Hedley about other tenderers and related matters, he was unable to commence the relevant enquiries. He said that this was likely to create difficulties and perhaps prejudice in that:

"... time always makes it difficult for people to recollect events and statements, and I would have been in a better position 10 months ago to have made those inquiries for that purpose, for that reason."

Reliance was also placed by counsel for the appellant on what was said to be a concession by Mr. Bradfield on behalf of the Director in a telephone conversation of 6 August 1986 between himself and Mr. Loftus. His Honour noted that, according to the evidence of Mr. Loftus, Mr. Bradfield said that he realised that the defence had been disadvantaged by not having the transcripts.
It was submitted before the primary Judge that there was prejudice to the proper preparation and conduct of the appellant's defence which resulted from what was described as wilful and prolonged conduct on the part of the Director and the second respondent in failing or neglecting to produce the material sought. Reliance was placed on what was said to be the uncontradicted evidence of witnesses called on behalf of the appellant that the failure by the Director to produce this material had an irretrievably adverse effect upon the preparation and conduct of the appellant's case. His Honour considered that submission and other related submissions and said that, having examined the whole of the material before the first respondent, he concluded that there was no substance in the submission. This submission was made to his Honour in support of the ground of review that certain matters were relevant to the making of the decision of the first respondent but which had not been taken into account by him such that he failed to take relevant considerations into account within the meaning of para. 5(2)(b) of the Judicial Review Act. His Honour said that it was apparent from the reasons for decision that the first respondent had in mind the whole of the conduct on which the appellant relied and that in taking it into account he gave it such weight as he thought appropriate in balancing the conflicting interests which he clearly recognised and articulated.
His Honour noted the finding of the first respondent that the failure to provide the material had resulted in prejudice to the appellant in preparation of his defence. His Honour said it must also be noted that the finding fell far short of the contention made by counsel for the appellant that the appellant had been irretrievably hindered in the preparation of his case and such was the uncontradicted evidence. His Honour said that, not only did this contention go beyond the first respondent's finding, but that it was not supported by the evidence.
It has not been established that his Honour erred in his analysis of the material before the first respondent and of the first respondent's decision with respect to it. In particular, the submission that his Honour did not properly take into account the first respondent's findings regarding disadvantage to the appellant in the preparation or conduct of his defence and the "concession" made by Mr. Bradfield, fails. This concession, if it can so be described, was made in the course of a telephone conversation of 6 August 1986 between Mr. Bradfield and Mr. Loftus. In our view it unduly elevates, in describing it as a concession, the significance of what was a statement made informally in the course of a running dialogue over the telephone.
The primary Judge plainly took into account the findings of the first respondent on the disadvantage to the appellant in the preparation of his defence. No error has been established.
The other ground of attack on His Honour's decision was that an irrelevant consideration was taken into account, namely, that a decision staying the proceedings indefinitely "would not have commanded the respect and confidence of the public".
This is a reference to a passage in his Honour's reasons for judgment where he said:

"Having reviewed the whole of the material and considered the submissions put to me, I am satisfied that this ground of challenge to the decision has not been made out. Indeed, having regard to the serious nature of the offence charged, it may well be said that, giving full weight to the criticism which can properly be made of those responsible for the prosecution, a decision staying the proceedings indefinitely would not have commanded the respect and confidence of the public."

Counsel for the appellant said that his Honour erred in referring to the offence charged as being one of a serious nature. Counsel said that the offence under s. 73, when viewed in the light of other offences under sections that appear in the same part of the Crimes Act is not a serious offence. We reject this suggestion. The fact that the offence with which the appellant has been charged is not expressed to be an indictable offence, and therefore punishable either on indictment or on summary conviction, and that a court of summary jurisdiction may not impose a longer period of imprisonment than one year in respect of such an offence does not detract from its seriousness. There are, plainly enough, degrees of seriousness of an offence of this kind depending upon the facts of the particular case. His Honour's comment was made, of course, with reference to the particular offence charged in this case. The passage in his Honour's reasons for judgment which has attracted the criticism of counsel for the appellant is not one that was critical to his Honour's findings. But, whether critical or not, we see no ground for finding that his Honour's comment was erroneous.
This argument of the appellant therefore failed before us. It was for these reasons that we dismissed the appeal with costs on 15 July 1987.

[1987] FCA 464

28 AUGUST 1987