Emanuele v Cahill

Re: GIUSEPPE EMANUELE
And: RONALD JOHN CAHILL and ALLAN JOHN DAU
No. ACT G74 of 1986 Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.

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 - Application refused in exercise of inherent jurisdiction - Application for order of review - Objection to competency - Whether decision a decision of an administrative character - Whether decision made "under an enactment" - Whether irrelevant considerations taken into account - Whether failure to take into account relevant considerations - Whether exercise of power manifestly unreasonable - Principles governing exercise of discretion to stay proceedings indefinitely.

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

Crimes Act 1914 (Cth), ss.12,73

Judiciary Act 1903 (Cth), s.68

Magistrates Court Ordinance 1930 (A.C.T.), ss.7, 10, 18

HEARING

CANBERRA

#DATE 25:2:1987

Counsel for the applicant: Mr J.L. Sher, Q.C. and Mr F.J. Purnell

Solicitors for the applicant: Crowley & Chamberlain

Counsel for the first respondent: Ms L. Vardanega

Solicitor for the first respondent: Australian Government Solicitor

Counsel for the second respondent: Mr B.T. Sully, Q.C. and Mr S.L. Walmsley

Solicitor for the second respondent: Director of Public Prosecutions

ORDER

The objection to competency filed on behalf of the second respondent be dismissed.

The application filed on behalf of the applicant be dismissed.

The applicant pay the costs of the first respondent as of a submitting party and two-thirds of the costs of the second respondent.

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

JUDGE1

This is an application by Giuseppe Emanuele ("the applicant") under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") for an order of review in respect of a decision of Ronald John Cahill, Chief Magistrate of the Australian Capital Territory ("the first respondent"), made on 4 November 1986 refusing to stay criminal proceedings brought against the applicant in the Magistrates Court of the Territory by Superintendent Allan John Dau of the Australian Federal Police ("the second respondent") as informant.

The second respondent objects to the competency of the application on the ground that the decision of the first respondent is not a decision to which the Judicial Review Act applies in that it is not a decision of an administrative character and it is not a decision under an enactment: see the definitions of "decision to which this Act applies" and "enactment" in sub-s.3(1) of the Judicial Review Act. I shall defer consideration of this objection until later in these reasons.
The applicant stands charged in the Magistrates Court 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 applicant, 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. That offence carries a maximum penalty of imprisonment for two years but 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 the submissions of the parties.
The second respondent is the police officer who was in charge of the investigation. He was assisted by Detective Senior Sergeant Peter Edward Phillips and other police officers. The criminal proceedings against the applicant are being carried on by the Director of Public Prosecutions appointed under the Director of Public Prosecutions Act 1983 (Cth).
The offence alleged arose out of events connected with the sale by tender of the shopping complex in the Australian Capital Territory known as the Belconnen Mall. The applicant, 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 applicant upon his arrival at Canberra airport, of some proceedings in Mr Hedley's office on 28 November 1985 when the applicant 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.
Sound recordings were also made of various conversations that took place on 27 and 28 November 1985. Transmitting devices were placed in three rooms (numbered 1113, 1115 and 1119) at the Lakeside International Hotel for the purpose of enabling members of the Australian Federal Police to monitor conversations taking place therein and to record those conversations on audio tape. Mr Hedley wore a transmitting device when meeting with the applicant and further recordings were made on audio tape from that source. 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 21 audio tapes, 6 being described as large master tapes and the remainder as small or standard cassette tapes. What was transmitted by the devices placed in the rooms at the Lakeside International Hotel was recorded on the 6 large tapes.
In mid to late December 1985 arrangements were made by the second respondent for a copy to be made of the 6 large tapes. As a result of the copying process, what was recorded on those tapes was also recorded on 53 standard cassette tapes, each cassette tape recording a separate conversation. Of the 53 cassettes, 16 recorded conversations in room 1113, 10 recorded conversations in room 1115 and 27 recorded conversations in room 1119. Some of those conversations were in the Italian language and in mid January 1986 the second respondent arranged for the cassette tapes recording those conversations to be made available to a Dr Nasca for the purpose of having the conversations translated into English.
On 13 December 1985 Detective Senior Sergeant Phillips had received 15 standard cassettes, being copies of the recordings made from the transmitting devices on Mr Hedley's person and in his office. The cassettes which were derived from the 6 large tapes, other than those provided to Dr Nasca, were handed to Detective Senior Sergeant Phillips by the second respondent on 31 January 1986. On 18 February 1986 Detective Senior Sergeant Phillips received the cassettes which had been made available to Dr Nasca. Thus, he then had in his possession 68 cassettes.
Transcripts of the conversations in the English language which took place at the Lakeside International Hotel were prepared progressively by typists listening to the tapes. Detective Senior Sergeant Phillips began the task of verifying their accuracy on 25 February 1986. The task of endeavouring to produce reliable transcripts progressed intermittently between that date and July or August 1986. Some of the transcripts were checked not only by Detective Senior Sergeant Phillips but also by Mr Hedley, Mr Hedley's recollection being that he checked some transcripts in March or April 1986. Detective Senior Sergeant Phillips also transcribed what was recorded on some of the 15 cassettes which had their origin in the transmitting devices on Mr Hedley's person and in his office.
According to Detective Senior Sergeant Phillips, there was not in existence as at 24 September 1986, the date on which he gave evidence, a set of reliable transcripts for every tape recording that had been made. A few tapes were said to be indecipherable in substantial part. As to others, there were difficulties in relation to particular words or phrases.
It will assist in the understanding of the chronology of events to which it is now necessary to refer in some detail if, at the outset, the actors are identified. At the time of his arrest, a firm of solicitors in Adelaide regularly acted for the applicant. Their agents in the Australian Capital Territory were Dawson Waldron. The Adelaide firm arranged for another Adelaide firm, Genders Wilson & Partners, to act for the applicant in connection with the criminal proceedings, the matter being handled in that firm by Mr Peter John Norman. The agents in the Australian Capital Territory of that firm were Macphillamy Cummins & Gibson. When Mr Norman subsequently became a partner in the Adelaide firm of Andersons, that firm commenced to act in this matter for the applicant. The agents in the Australian Capital Territory of the latter firm were Crowley & Chamberlain.
In the Office of the Director of Public Prosecutions, the staff having the conduct of the prosecution included Mr I. Bradfield, Mr I.R. Bermingham and Mr G.C. Lalor.
On 2 December 1985 Dawson Waldron 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 applicant 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 understanding being given by the Director.
On 9 December 1985 the applicant was remanded to appear in the Magistrates Court on 21 February 1986.
By letter dated 10 December 1985, Macphillamy Cummins & Gibson requested the Director to supply, on or before 23 December 1985, the following:

"1. A copy of all video tapes, audio tapes and any transcript made of any interview or material relevant to this case. It will be necessary for us in due course to have the originals examined by an appropriate expert.

2. A copy of all media releases issued by you or by the police relating to this case.

3. Copies of all documents seized from the defendant or any other person in connection with this matter.

4. Copies of observation/running sheets related to Mr Emanuele.

5. A copy of all briefing papers or other papers used by the Federal Police Officers in this case.

6. Copies of any notes or records of interviews with Messrs Hedley, Emanuele, Fabrizio, Wales, Christo, Lamberto and any other witness including any reports or affidavits made by any of the above people.

7. Copies of any warrant or warrants issued in this case."

The Director replied by letter dated 16 December 1985 in the following terms:

"I refer to your (sic) dated 10 December 1985 requesting copies of documentation and material relating to the charge laid against your client, Mr Guiseppe Emanuel (sic).

A full brief of evidence in this matter is being prepared by the Australian Federal Police for submission to this Office for advice. I expect that the brief will be received early in the new year. When the brief is received and considered a decision will then be made as to what material I am prepared to disclose to you.

If you are particularly interested in obtaining copies of documents seized from Mr Emanuel (sic) himself, I am willing to make arrangements to speed up the provision to you of copies of such documents. Please advise if this is the case."

Macphillamy Cummins & Gibson replied by letter dated 17 December 1985 as follows:

"We refer to your letter of 16 December 1985. We are very interested in obtaining copies of documents seized from Mr Emanuele as soon as possible and appreciate your offer to speed up arrangements. Please deliver these materials to us or advise us of where we may collect them as soon as possible.

We note that a full brief may not be available until early in the New Year. We request that this matter be expedited so that our client can be fully briefed as to his legal position and to allow preparation of our client's case for February."

On 21 February 1986 the applicant was again remanded. The remand was until 12 May 1986. After the matter had been mentioned in the Magistrates Court, a conversation took place between Mr Norman and Detective Senior Sergeant Phillips. Mr Norman was informed that the tapes were being transcribed and that difficulty was being experienced in translating some of the Italian on the tapes. Mr Norman made a note, "Tapes ready in March" but he was unable to say whether he was so informed by Detective Senior Sergeant Phillips or by someone from the Director's office. On the same day a conversation took place between Mr Abbott, Q.C., senior counsel for the applicant, and Mr Bermingham. Mr Norman was present. Mr Bermingham was informed that the defence was very anxious to obtain copies of the tapes and of the transcripts. Mr Bermingham said he was unable to do anything at that stage as he had not received that material himself.
Between 21 February 1986 and 30 April 1986 requests were made on behalf of the applicant on a number of occasions for copies of the tapes and transcripts. On 30 April 1986 Macphillamy Cummins & Gibson wrote to the Director in the following terms:

"As you know, we act for the abovenamed defendant.

We note that there have been a number of discussions between our office and your office and between Mr John Purnell, of the Canberra Bar, who has been briefed to appear on behalf of our client and your officers.

Notwithstanding those discussions, we note that a number of our requests remain unanswered and, as you will appreciate, this is making preparation of our client's case extremely difficult, indeed to the point of substantial interference.

As we understand it, you have still not received a brief of evidence from the Australian Federal Police and would be pleased if you would, yet again, chase them up so that you might be fully instructed and respond to our request.

In particular, we confirm our request that you supply the following:

(1) Advice as to whether there were five tenders as has been alleged or only four, seeking to purchase the Belconnen Mall.

(2) Copies of the documents referred to in our letter of 10 December 1985.

(3) Advice as to whether the Australian Federal Police or the Department of Territories or any other group filmed or took any visual or other and, if so, what, record of opening of the tender box and the opening of the tenders.

We trust you will be able to respond to these requests in the very near future and, in any event, prior to the next mention of the matter."

The Director replied by letter dated 5 May 1986 as follows:

"I refer to your letter dated 30 April 1986 regarding the abovementioned matter.

As indicated in the course of recent conversations with Mr John Purnell of counsel, I am seeking information with respect to the first and third matters raised in your letter of 30 April 1986.

With regard to the matters about which you seek advice in your letter of 10 December 1985, I advise that as yet I have still not received a brief from the police in this matter.

In the meantime, I understand that you have received copies of documents seized from your client and furthermore, that inspection of the original tender documents has already taken place. As already advised, until I receive the brief of evidence, I am unable to consider what material is available and what, if any, may be disclosed to you.

I note the inconvenience caused to your client in having to travel interstate to appear on the mention date. I have asked Mr I. Bradfield of this office, who is the solicitor handling this case, to get in touch with you regarding this matter."

On 12 May 1986 the applicant was further remanded until 10 October 1986. That date was subsequently vacated and the hearing fixed to commence on 3 November 1986. For completeness it may be mentioned that the latter date was also vacated. The hearing is at present fixed to commence on 23 March 1987.
After the hearing on 12 May 1986, a discussion took place between Mr Abbott, Q.C. and Detective Senior Sergeant Phillips, Mr Norman also being present. Mr Norman's understanding was that the police "brief" would shortly be delivered to the Director. According to Detective Senior Sergeant Phillips Mr Abbott asked how the transcripts were going to which the reply was given, "Slowly".
Macphillamy Cummins & Gibson again wrote to the Director on 13 May 1986 referring to advice received from Detective Senior Sergeant Phillips that the brief of evidence would be delivered to the Director "very shortly" and confirming that requests had been made in the following terms:

"1. Were there five tenders for the purchase of the Belconnen Mall?

2. Did the Australian Federal Police or the Department of Territories or any other person or group film or take any other visual or other and, if so, what record of the opening of the tender box and the opening of the tenders?

3. Please let us have a copy of any such record.

4. Please let us have a copy of all video tapes, audio tapes and transcripts thereof of any interview or other occasion relevant to this case.

5. Please confirm that we might have access to the originals of such tapes for the purpose of listening to them and for the purpose of them being examined by an appropriate expert.

6. Please let us have a copy of all media releases issued by you or by the Australian Federal Police relating to this case.

7. Please let us have all copies of all observations/running sheets relating to Mr Emanuele and Mr Fabrizio.

8. Please let us have a copy of all briefing papers or other papers used by the Australian Federal Police officers in this case.

9. Please let us have copies of any notes or records of interview with Messrs Hedley, Emanuele, Fabrizio, Wales, Christo, Lamberto and any other witnesses including any reports or affidavits made by any person.

10. Please let us have copies of any warrants or warrants issued in this case."

The letter concluded:

"As indicated above, we understand that the brief is now or will very shortly be delivered to you and, accordingly, we would appreciate your urgent attention to these matters.

If you propose to deny access to any of the material referred to above please advise us so that we may consider whether it is necessary to make application to an appropriate Court."

On 23 June 1986 a meeting took place between Mr Abbott, Q.C., Mr Purnell, Mr Norman and Mr Lalor. Mr Bradfield was present for at least part of the time. According to Mr Norman, the discussions concerned the hearing date and the provision of copies of the tapes and transcripts. Mr Lalor said that the tapes and transcripts would be provided but he was not prepared to say when. As to the transcripts, Mr Lalor referred to the need for them to be verified by an officer of the Director's Office before they could be released. Mr Norman gained the impression that the tapes and transcripts would be made available and that a decision would be made "quite soon" as to when they would be released to the applicant's legal advisers. According to Mr Norman, the Director's attitude was that the matter should proceed by way of preliminary hearing and not as a summary trial. Counsel for the applicant indicated that the attitude of the defence could not be formulated until the material sought had been considered.
On 7 July 1986 what was described by Detective Senior Sergeant Phillips as "the full brief of evidence" was delivered to the Director. The evidence does not identify in any greater detail what was in fact delivered.
On 5 August 1986 Andersons wrote to the Director confirming that their Canberra agents were Crowley & Chamberlain (Mr B. Loftus). Reference was made to the previous requests, both written and oral, for material. Concern was expressed that it had not been provided. The letter included the following paragraphs:

"We are therefore instructed to write a final time to request that the information and documents referred to above (other than a limited number of documents previously forwarded by you to MacPhillamy Cummins & Gibson in January 1986) be forwarded to us. In particular, we call on you to advise us:-

(a) What documents you hold in relation to this matter.

(b) When do you propose they will be made available to us.

We must ask that you let us have your decision in regard to this request within seven (7) days hereof, failing which we are instructed to take such action as may be advised to expedite this matter."

On 6 August 1986 a telephone conversation took place between Mr Loftus and Mr Bradfield. According to Mr Loftus, Mr Bradfield said:

"The tapes are with the investigating officers and there is a shortage of staff in that area at the moment, but arrangements have been made for them to be copied as soon as possible.... We expect that we will have copies of the tapes ready for you within one week."

Mr Bradfield also said that he would have to take instructions on making 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 during the afternoon. According to Mr Loftus' diary no telephone call was received.

The Director addressed a letter dated 7 August 1986 to Andersons as follows:

"I refer to your letter of 5 August and various conferences and telephone attendances in this matter and note that I am somewhat surprised at the tenor of that letter. My Mr Lalor has informed your Mr Norman, Mr Abbott Q.C. and your Canberra agents as well as Mr Purnell of Counsel that it will be the prosecution's submission that this is not a matter appropriate to be dealt with in a Court of Summary jurisdiction and as this was to be a committal hearing particulars as sought by your former Canberra agents would not be supplied.

As you indicate in your letter Mr Lalor advised at a conference on 23 June 1986 that he would discuss with Mr Temby Q.C. when the tapes and transcripts should be handed over. As I understand it you have been advised, or should have been advised, that all tapes will be handed over when they are to hand. Your understanding as to my receipt of the brief of evidence in this matter is not quite correct. I have received various witness statements but I have not received the tapes or a complete set of transcripts.

Mr Purnell of Counsel approached my Mr Lalor briefly in the Supreme Court on Friday 1 August and asked for the tapes and transcripts that day as apparently a conference was to be held with the defendant sometime this week. He said he would appreciate it if this could be done. He was advised that Mr Lalor would see what the position was. Mr Bradfield of my office made enquiries and left a message with Messrs Crowley & Camberlain that the tapes were being copied by Detective Sergeant Phillips for you and that he had advised that this would take approximately one more week.

I can only repeat that I do not intend supplying you with the information requested in your former agent's letters but that I will provide the transcripts when they have been finally verified. When you indicate that you intend taking 'such action as may be advised' should you not receive what you have requested by 12 August I can only assume that you intend making an application such as was made in Cahill and Leach; ex parte McGregor (1985) 16 A. Crim R. 25 and if so I would ask that you give me a week's notice of that application.

I shall advise you when the tapes and transcripts are available."

On 8 August 1986 two copies of each of 48 standard cassette tapes were delivered to the Director's Office by Detective Senior Sergeant Phillips.
On 11 August 1986 Mr Bradfield telephoned Mr Loftus and, in his absence, left a message asking him to return the call. Mr Loftus telephoned on 12 August 1986 and arranged with Mr Bradfield to collect the tapes that were then being made available.
Andersons wrote to the Director on 14 August 1986 as follows:

"We refer to our letter to you of 5th August 1986 and to your response dated the 7th August 1986.

We are informed by our Canberra agents, Crowley and Chamberlain, that a number of tapes were delivered by you to their office on the evening of the 12th August 1986.

We write this letter to seek your confirmation that these tapes comprised a totality of tapes held by the prosecution (namely both the Federal Police and the D.P.P.) and that no other tapes exist in relation to this matter. We seek this assurance because we understand that a video tape was made in relation to this matter and we do not appear to have been given a copy of this video tape. We request that you supply us with all tapes concerning our client, audio, video or otherwise, as a matter of urgency.

We note that you do not intend to supply us with transcripts of tapes at this stage. We have been given no information as to when these transcripts will be forthcoming.

We hereby request that you supply us with all transcripts whether verified or not at this stage. We note that you have continued to ignore our request for other material which was specified in our letter of 5 August 1986. This request was first made as long ago as 10 December 1985.

If the material requested is not forthcoming then we are instructed to take such steps as we consider appropriate in order to protect our client's interests including, if necessary, an application to stay the proceedings.

We would be obliged if you would let us have your immediate response to this letter."

On 22 August 1986 Andersons wrote to the first respondent giving notice that on 4 September 1986 the applicant would "apply to the Court for a stay of the above mentioned proceedings on the ground that they constitute an abuse of process in the circumstances and on the further ground that the prosecution is being conducted unfairly to the Defendant and that he is being denied natural justice". It was further stated that, in the alternative, the applicant would apply for a stay of proceedings for so long as the informant or the Director failed to provide to the applicant's legal advisers the following:

"(a) Copies of all video tapes, audio tapes or other recorded material available to the informant and/or the Director of Public Prosecutions concerning the subject matter of the charge.

(b) Transcripts of all of the aforementioned tapes including translations of any tapes recorded in Italian.

(c) Copies of all the documents seized from the Defendant by the informant or other police.

(d) Copies of any notes of or records of interview with the Defendant.

(e) Copies of any notes of records of interview with Messrs Hedley (the Commonwealth Public Servant referred to in the information), Fabrizio, Wales, Christo, Lamberto and any other witness intended to be called by the informant and/or the Director of Public Prosecutions at the aforementioned hearing."

In the further alternative, an application was foreshadowed for "such orders and/or directions and/or process as may be necessary so as to ensure that the aforementioned tapes, transcripts and documents are provided forthwith to the defendant's legal advisers".

Notice of the proposed application was given to the Director by letter of the same date. That letter also contained the following paragraphs:

"We have considered your letter of the 7th August, 1986. The submission you intend to make which is outlined in the first paragraph of your letter does not, in our opinion, justify the course that you have adopted in failing to make available the material which we have sought. Without it we are unable to properly advise Mr Emanuele or conduct his defence. The suggestion that a committal hearing can properly be conducted for a defendant without his advisers having a proper opportunity to consider well in advance the material we have sought is untenable. In any event the decision as to whether or not the proceedings will take the form of a committal is not a matter for you.

You have provided us with approximately 48 copy audio tapes but only one transcript. Apart from the fact that this step has put the defendant to extraordinary expense and inconvenience it does not enable us to check the transcripts on which the prosecution will seek to rely. We do not accept that the prosecution is not, at this point of time, in possession of any other transcripts or unable to provide them. We again request that transcripts of all tapes relevant to this matter, whether video or audio, be provided forthwith.

We further request that the material and documents detailed in our letter to the Chief Magistrate be provided forthwith."

Subsequently, by letter dated 2 September 1986, the Director was informed that the letter was incorrect in stating that one transcript had been provided. The letter stated that no transcripts had in fact been supplied.

On 4 September 1986 the first respondent commenced to hear the application foreshadowed in the letter dated 22 August 1986. At the conclusion of the hearing on that date of certain preliminary issues, the first respondent reserved his decision.
During the hearing, the Director informed the first respondent that 48 sound tapes had been made available to the applicant's legal advisers on 12 August 1986. He also stated that his office had received a full set of transcripts (presumably of those 48 tapes) on the previous afternoon and that the present intention was "to provide authenticated transcripts of those relatively small parts of the tapes upon which the Crown proposes to rely and to provide unauthenticated transcripts of all of the rest of the material". The Director further said that it was proposed, in order to facilitate the hearing of the matter, to give the defence an opportunity before the hearing to see the Crown brief generally.
On 15 September 1986 the first respondent determined the preliminary issues favourably to the applicant. The further hearing of the application was adjourned to a date to be fixed.
On 16 September 1986 the Director wrote to the applicant's solicitors in the following terms:

"I refer to your letter of 22 August 1986 and the application in the Magistrate's (sic) Court of the Australian Capital Territory commencing on 4 September 1986 before Chief Magistrate Mr R.J. Cahill during which senior counsel for the informant told the Court that on 12 August copies of sound tapes had been handed to you. Since that date he has been made aware that the following sound tapes are in existence, having been copied from the original master tapes onto standard cassette tapes:

(a) 16 tapes recording conversations from room 1113 at the Lakeside International Hotel;

(b) 10 tapes recording conversations from room 1115 at the Lakeside International Hotel;

(c) 27 tapes recording conversations from room 1119 at the Lakeside International Hotel;

(d) 14 tapes from a recording device worn by Anthony Robert Hedley;

(e) 1 tape recording a conversation held in the office of Anthony Robert Hedley.

On 12 August your Canberra agents were handed copies of 48 sound tapes being

(i) the tapes mentioned in (c) above;

(ii) the tapes mentioned in (b) above;

(iii) 10 tapes from the 14 mentioned in (d) above; and

(iv) the tape mentioned in (e) above.

I enclose herewith the following sound tapes:

(1) 4 tapes from a recording device worn by Anthony Robert Hedley being the remainder of the tapes mentioned in (d) above not previously forwarded as mentioned in (iii) above. I note that apart from recording a dinner conversation at the Lakeside International Hotel between your client and others including Hedley these tapes are duplicates of conversations between your client and Hedley in room 1119 at the Lakeside International Hotel and duplicates also of other tapes from the recording device worn by Hedley. This latter duplication has arisen from the fact that two surveillance teams recorded the conversations from the device worn by Hedley and on occasions those recordings duplicated conversations.

(2) 7 tapes recording conversations from room 1113 at the Lakeside International Hotel mentioned in (a) above. The remaining 9 tapes are not provided on the basis that the content thereon is of a nature private and personal to Bruce Wales, and the production on subpoena of these tapes would be resisted on the grounds of lack of relevance, and public interest privilege.

I also enclose herewith three video tapes which contain the totality of the footage taken by the surveillance teams in this matter.

I also enclose herewith the following documents:

(a) Documents seized from your client's briefcase at the time of his arrest which are

(i) 'With Compliments'slip from the Emanuele Group of Companies which is attached to a further 'With Compliments' slip which in turn is attached to tender documents; and

(ii) 18 pages of figures and handwriting.

(b) Copies of a document being the tender document and attachments consisting of 6 typewritten pages dated 27 November 1985 and received from the Department of Territories.

(c) Copy of a document on Noah's notepaper on which is written:

'50 -

50 -'

handed to police by Anthony Robert Hedley.

(d) Copy torn document headed:

'50

50 & $10,000'

taken from room 1119 at the Lakeside International Hotel.

I also enclose herewith a photocopy of notes taken of conversations between your client and the informant and between Antonio Fabrizio and the informant.

I have difficulty with the provision of transcripts. Whilst every tape has not been transcribed, I have transcripts of those which have been. The precise accuracy of those transcripts cannot be vouched for. Having provided a copy of the tapes the Informant is under no obligation to provide more. I am prepared as a matter of comity and convenience to provide you with a copy of such transcripts as I hold, with any imperfections they may contain. If you advise that you would like them on the understanding that nothing will at a later time to (sic) be made of any imperfections I shall provide them for your assistance.

I shall, well before the process of taking evidence commences, identify those parts of the transcripts upon which reliance will be placed at the hearing and endeavour to ensure their accuracy. It is to be borne in mind that your client, who is apparently a man of means, can himself have transcripts prepared if he so desires. In that event you might care, as a matter of comity and convenience, to provide copies of (sic) us.

So far as other documents you have requested are concerned I do not provide them as they are covered, in my opinion, by legal professional privilege.

A copy of this letter is being sent to your Canberra agent and also the solicitors for Antonio Fabrizio who have also been supplied with the tapes and documents supplied to you."

A copy of that letter, though bearing the date 12 September 1986, together with the material referred to therein as enclosed had been delivered to Mr Loftus on 12 September 1986.

The hearing of the application for a stay of proceedings resumed on 24 September 1986 and continued on the following day. Oral evidence was given on behalf of the applicant by Superintendent Dau, Detective Senior Sergeant Phillips, Mr Hedley, Mr Norman and Mr Loftus. No evidence was adduced on behalf of the second respondent. At the conclusion of the hearing the first respondent reserved his decision.
During the course of submissions, counsel for the second respondent explained that the reference in the Director's letter dated 16 September 1986 to the transcripts being provided "on the understanding that nothing will at a later time be made of any imperfections" was intended only to indicate that the Director was not vouching for their accuracy.
Also during the course of submissions, the first respondent requested to be informed if, before he announced his decision upon the application, the Director made a transcript of any of the tapes available to the applicant's legal advisers.

The Director wrote to Crowley & Chamberlain letters dated 9 and 22 October 1986. The first of those letters read as follows -

"I refer to my letter of 16 September and enclose notes and transcripts of all of the tapes previously provided which are in the English language.

They are in such a state that they should be useful. However, it is not asserted that the transcripts are precisely accurate. Rather they are as good as is presently available.

Certain of the tapes are wholly or partly in the Italian language. The materials with which we have been provided are not such as can be safely and satisfactorily used. Transcripts of those tapes are now being obtained from a fresh source. I am assured they will be available by Monday of next week. As soon as we know they will be useful, copies will be provided to you.

For your information we are writing in similar terms to Dawson Waldron, solicitors for Mr Fabrizio."

The later letter read:

"I refer to my letter of 9 October and enclose transcripts received this morning of the balance of the tapes previously provided being in whole or in part in the Italian language.

They are provided for your use and assistance on the basis outlined on 9 October.

For your information we are writing in similar terms to Dawson Waldron solicitors for Mr Fabrizio."

On 4 November 1986 the first respondent gave his decision, dismissing the application for an indefinite stay of the proceedings. As all the material sought by the applicant'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, no occasion arose for the grant of the alternative relief sought. Reasons for his decision in summary form, were given orally and later a more detailed written statement of his reasons was made available to the parties. What follows has been distilled from the oral and written reasons.
The reasons addressed the question whether the Magistrates Court had jurisdiction to stay indefinitely criminal proceedings pending before it on the ground of abuse of process. An affirmative answer was given to that question whether the pending proceedings were committal proceedings or a summary trial. That conclusion was reached after referring to a number of decided cases: Connelly v. Director of Public Prosecutions (1964) AC 1254; Rourke v. The Queen (1977) 76 DLR (3d) 193; Director of Public Prosecutions v. Humphrys (1977) AC 1; Miller v. Ryan (1980) 1 NSWLR 93; Moevao v. Department of Labour (1980) 1 NZLR 464; Darcey v. Pre-Term Foundation Clinic (1983) 2 NSWLR 497; R. v. West London Stipendiary Magistrate; Ex parte Anderson (1984) 80 CrAppR 143; The Queen v. Derby Crown Court; Ex parte Brooks (1984) 80 CrAppR 164; The Queen v. Vuckov and Romeo (1986) 40 SASR 498; and Gill v. McGregor (Supreme Court of New South Wales, Court of Appeal Division - 12 September 1986 - unreported). No decision was made whether the hearing of the charge against the applicant was to proceed as a committal or as a summary trial, the view being taken that it was premature to consider that question upon the application then before the Court.
I should interpolate that the conclusion that the Magistrates Court has jurisdiction to stay proceedings for abuse of process was not the subject of argument on the hearing of the present application. Indeed, it was accepted by counsel for the applicant and for the second respondent (the first respondent appearing only to submit to whatever order the Court might make) that the Magistrates Court has that jurisdiction and may exercise it in an appropriate case. The argument turned on whether, in the circumstances of this case, the first respondent had fallen into error in declining to exercise the jurisdiction. It may be noted, in passing, that the question whether a magistrate hearing committal proceedings may decline to continue with those proceedings on the ground that they are an abuse of process was touched upon in Lamb v. Moss (1983) 49 ALR 533 but the Court did not find it necessary to express an opinion upon the point: see the report at p 540. I am content to assume, for the purpose of the present application, that the Magistrates Court possesses the necessary jurisdiction.
The reasons for decision summarised the correspondence to which reference has already been made and reviewed in some detail the oral evidence adduced on behalf of the applicant. The submissions of counsel for the parties were catalogued at some length. Reference in general terms was then made to what will amount to an abuse of process and the point made that it is the circumstances of each particular case that must be carefully examined in order to determine whether what has occurred amounts to such an abuse. There followed an examination, in the light of decided cases, of the nature of the discretion which the first respondent was being called upon to exercise. The task was identified as one of balancing, in the circumstances of the instant case, the public interest in allowing the processes of the criminal law to run their normal course on the one hand, and, on the other, the need to ensure that the process of the court was not abused.
The first respondent clearly acted on the basis that the granting of an indefinite stay of criminal proceedings was a serious matter, an extreme step to be taken only in exceptional circumstances. The abuse of process, he said, must be "clear and extremely serious". The case in which it would be appropriate to exercise the power was variously described as "a rare case", "a rare and severe case", "a rare and irretrievable case", "a case of a severe type or category".
In reaching his conclusion to refuse a stay, the following matters were expressly referred to by the first respondent as having been taken into account:

(a) The application had been brought before him in an informal way, no summons or other process having been issued. No summons requiring production to the Court of the material sought by the applicant had been issued.

(b) Absent a summons requiring production of the material to the Court, there was no legal obligation on the Director to furnish to the applicant's legal advisers the material requested.

(c) The material sought by the applicant went beyond the usual request to be supplied with copies of the statements of the witnesses to be called by the prosecution. Much of what was sought would not be part of the evidence adduced in support of the prosecution case and would not, indeed, be admissible.

(d) Much of the material on audio tape consisted of conversations in which the applicant had participated or at which he was present. Those tapes, however, would enable the applicant to refresh his memory as to what took place and would greatly assist his legal advisers in making available to them an accurate record of the conversations.

(e) The transcripts, representing secondary evidence of what was recorded on the audio tapes, stood in a somewhat different position from the tapes themselves.

(f) The applicant's legal advisers considered that the whole of the material sought should be examined for the proper preparation of the applicant's defence. No criticism was made of that attitude.

(g) What appeared to have been a conditional offer to make transcripts available contained in the Director's letter dated 16 September 1986 had been clarified.

(h) The history of the dealings and correspondence between the parties revealed delays and vacillation as to the production of the materials sought. There were changes of attitude on the part of those having responsibility for the matter in the Director's Office.

(i) Hopes and promises were made on which the applicant's legal advisers relied. Such reliance may well have led them to defer taking action in the preparation of the applicant's case which they might otherwise have taken.

(j) The applicant was disadvantaged in the preparation of his case. From some of the disadvantages, the defence "may not be able to recover".

(k) The material sought by the applicant's legal advisers, other than that which was the subject of a claim for privilege on which the Court had yet to rule, had been produced by the Director albeit at a very late stage.

(l) The offence charged was of a serious nature.

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 applicant's legal advisers so as to cause unfairness and amount to oppression. Indeed, what is said in the reasons is, on a fair reading of it, inconsistent with such a finding.
Having referred in detail to the decision, it is convenient to consider the objection to the competency of the present application.
The submission by the second respondent that the decision made by the first respondent does not, in its essential nature, answer the description of a decision of an administrative character chose as its focal point, not the decision which the first respondent in fact made, but the decision which he was asked to make, namely a decision staying indefinitely the criminal proceedings then pending against the applicant. It was submitted that one of the indicia which distinguishes a decision of a judicial character from one of an administrative character is the conclusive nature of the former. A decision granting an indefinite stay of the criminal proceedings would, so the argument ran, be a decision having in every sense the quality of conclusiveness. Other indicia distinguishing a decision of a judicial character were that the tribunal had the trappings and procedures of a court, that the proceedings were adversary in form and that the tribunal's duty was to apply in a judicial way established legal principles to a particular factual situation. Each of those indicia being also present in the instant case, the consequence, so counsel submitted, was that any decision which the first respondent made upon the application for an indefinite stay of the criminal proceedings was a decision not of an administrative but of a judicial character.
The resolution of this question must, so it seems to me, begin with an examination of the nature of the proceedings which were before the Magistrates Court. As has already been mentioned, the offence with which the applicant is charged is punishable either on indictment or on summary conviction (Crimes Act, sub-s.12(1)) and the Magistrates Court, being a court of summary jurisdiction, may either determine the proceedings, or commit the applicant for trial (ibid., sub-s.12(2)). No decision has yet been made as to the course the proceedings will follow and, until a decision is made that the offence will be tried summarily in the Magistrates Court, the proceedings must, as a matter of practicality, be conducted by way of a preliminary inquiry.
The application to stay the proceedings indefinitely must be seen against that background. The application was made not as a separate substantive application but as a step in, and as an incident of, the pending criminal proceedings. Collateral proceedings could, of course, have been taken by having resort to the supervisory jurisdiction of the Supreme Court of the Australian Capital Territory and, in that event, it may be accepted that the proceedings would have had the character of judicial proceedings. As such, it could not have been contended with any hope of success that the decision of the Supreme Court thereon was a decision reviewable under the Judicial Review Act. But that course was not followed.
In my opinion, the application is to be regarded as one ancillary to the proceedings then pending against the applicant, proceedings which, in my view, are properly described as committal proceedings. It is now well established that some decisions made in the course of such proceedings are reviewable under the Judicial Review Act: Lamb v. Moss (supra). In my opinion, the decision made in the instant case is so reviewable. It is not of significance that a decision by the Supreme Court to stay committal proceedings indefinitely may not be reviewable under the Judicial Review Act yet one made by the Magistrates Court in the course of such proceedings is reviewable. It is not unknown for the same language to confer an administrative power on one tribunal and judicial power on another: see Farbenfabriken Bayer Aktiengesellschaft v. Bayer Pharma Pty. Ltd. (1959) 101 CLR 652 at pp 659-660. Nor, in my opinion, does it assist the case made by the second respondent to concede that, if the proceedings before the Magistrates Court were by way of a summary trial, a decision upon an application to grant an indefinite stay would not be reviewable under the Judicial Review Act.
In any event, I am not satisfied that the making of a decision by the Magistrates Court to stay committal proceedings either for a time or indefinitely incontestably has the hallmarks of an exercise of a judicial function so as to take it out of the category of a decision of an administrative character. While the effect of the decision would be that the hearing of the committal proceedings could not continue, the decision would not declare or determine existing rights conclusively or otherwise.
In my opinion, the objection to competency, in so far as it rests on the proposition that the decision the subject of review is not a decision of an administrative character, fails.
The other ground of objection to the competency of the application is that the decision is not properly described as a decision "under an enactment". That ground of objection identified the jurisdiction of the Magistrate's Court to order the indefinite stay of criminal proceedings, including committal proceedings, pending before it as part of that Court's inherent jurisdiction. That jurisdiction, so it was submitted, is not derived, either expressly or by implication, from the legislative provisions conferring particular jurisdiction on the Court, but is a jurisdiction having its source in the circumstance that the tribunal is established as a court. Reference was made to The Queen v. Forbes; Ex parte Bevan (1972) 127 CLR 1 and Darcey v. Pre-Term Foundation Clinic (1983) 2 NSWLR 497 at pp 503-4. In The Queen v. Forbes; Ex parte Bevan, Menzies J., with whose judgment Barwick C.J.and Walsh and Stephen JJ. agreed, said at p 7:

"'Inherent jurisdiction' is the power which a court has simply because it is a court of a particular description. Thus the Courts of Common Law without the aid of any authorizing provision had inherent jurisdiction to prevent abuse of their process and to punish for contempt. Inherent jurisdiction is not something derived by implication from statutory provisions conferring particular jurisdiction; if such a provision is to be considered as conferring more than is actually expressed that further jurisdiction is conferred by implication according to accepted standards of statutory construction and it would be inaccurate to describe it as 'inherent jurisdiction', which, as the name indicates, requires no authorizing provision."

On the assumption made that the Magistrates Court, when hearing committal proceedings, has power to stay those proceedings indefinitely on the ground of abuse of process, and accepting that that power is not to be found conferred expressly by the legislative provisions constituting the Court or conferring particular jurisdiction upon it, or by implication from those provisions, I do not think it follows that, for the purposes of the Judicial Review Act, a decision to exercise, or refrain from exercising, that power is not a decision made "under an enactment".
In Australian National University v. Burns (1982) 43 ALR 25 at p 31, Bowen C.J. and Lockhart J. said:

"The difficulty in the present case does not lie in the definition of the expression 'under an enactment'. We agree with Fox J. who said in Evans v. Freimann (1981) 35 ALR 428 at 436; 3 ALD 326 at 333, that the word 'under', in the context of the Judicial Review Act, connotes 'in pursuance of' or 'under the authority of': see also R. v. Clyne (1941) VLR 200. The difficulty lies in the application of the expression to particular circumstances. The present case poses the problem in an acute form.

We agree with the primary judge when he said (40 ALR at 716-7): 'The clear object of the Act is to confer rights on aggrieved citizens as a result of the exercise of powers conferred by an enactment on Ministers, public servants, statutory authorities and others. In many cases the power to exercise will be precisely stated in the legislation. In other cases the power to do a particular thing will be found in a broadly stated power. The Act should not be confined to cases where the particular power is precisely stated. In each case the question to be asked is one of substance, whether, in effect, the decision is made "under an enactment" or otherwise.'"

The authority of the Magistrates Court to entertain the criminal proceedings against the applicant, whether those proceedings be committal proceedings or a summary trial, derives from s.68 of the Judiciary Act 1903 (Cth). Sub-section 68(1) relevantly provides that the laws of the Australian Capital Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for their summary conviction and their examination and commitment for trial on indictment, are, subject to the section, to 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 courts of the Territory by s.68. By virtue of sub-s.68(2), the several Courts of the Territory exercising jurisdiction with respect to the summary conviction or the examination and commitment for trial on indictment of offenders or persons charged with offences against the laws of the Territory are, subject to s.68 and to s.80 of the Constitution, to have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth. The jurisdiction may, however, only be exercised by a Stipendiary or Police or Special Magistrate or some Magistrate of the Territory who is specially authorized by the Governor-General to exercise such jurisdiction (sub-s.68(3)). The Magistrates Court Ordinance 1930 (A.C.T.) provides for the establishment of the Magistrates Court (s.18), its jurisdiction being exercised by a Chief Magistrate and such other Magistrates and Special Magistrates as from time to time hold office in accordance with the Ordinance (ss.7, 10). The Court has jurisdiction with respect to the summary conviction and the examination and commitment for trial on indictment of offenders and persons charged with offences against the laws of the Territory. It, consequently, has similar jurisdiction with respect to persons charged with offences against the laws of the Commonwealth. The applicant is such a person.

In the result, the applicant has failed to establish any foundation for the relief sought. The application is, therefore, dismissed.
As the applicant has wholly failed in his claim and as the second respondent has failed in his objection to competency, I consider that the appropriate order for costs is that the applicant pay two-thirds of the second respondent's costs. The applicant must pay the costs of the first respondent as of a submitting party.

[1987] FCA 87

25 FEBRUARY 1987