Eustace, Anthony v Clothier, Brian

[1984] FCA 372

Re: ANTHONY EUSTACE
And: BRIAN CLOTHIER & ORS
No. G184 of 1984
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.

CATCHWORDS

Administrative Law - Judicial Review - Criminal charges - Committal proceedings - Application for review of decision to commit for trial - Application requiring detailed consideration of evidence - Whether court should, in the exercise of its discretion, entertain Application - Effect of non-compliance with s.7 of Telecommunications (Interception) Act 1979.

Administrative Decisions (Judicial Review) Act 1977 s.5

Telecommunications (Interception) Act 1979 s.7

HEARING

SYDNEY

#DATE 31:10:1984

ORDER

Application dismissed.

Order that the applicant pay to the respondents their costs of the proceedings.

JUDGE1

The matter before the Court is an Application under the Administrative Decisions (Judicial Review) Act 1977 in respect of a decision by the first respondent to commit for trial the applicant in respect of four matters arising under the Customs Act 1901. These consist of two charges of conspiracy to import prohibited imports, a charge that the applicant was knowingly concerned in the importation of a prohibited import contrary to the Act, and a charge of importing a prohibited import. The imports referred to were cannabis resin, and the events are alleged to have occurred between 14 November 1982 and 19 January 1983. The applicant was charged with others, and the proceedings were heard in the Magistrates Court at Melbourne in May 1984. On 14 May 1984 the applicant was committed for trial on all four charges.

When the present Application came before me in the directions list, I directed that particulars of the grounds of review be supplied to the respondents and a copy filed with the Court.

The first ground that was relied upon in the particulars filed related to the circumstance that the applicant had been extradited from New South Wales to Victoria on one only of the charges, namely, conspiring with Patrick Edward Templer and Wayne Morris. When the applicant reached Melbourne, additional charges were added. However, at the commencement of argument today, Mr Papayanni, on behalf of the applicant, expressly abandoned any reliance on this matter.

The remaining matters in respect of which a challenge is made to the magistrate's decision depend upon the sufficiency of the evidence to justify the magistrate's finding that a prima facie case existed and his decision to commit for trial. Those matters may be conveniently considered in two seperate classes.

In the first class were submissions that there were various gaps in the evidence relating to the circumstances in which certain telephone conversations, allegedly involving the applicant and the other accused persons, had been recorded. It was said, for example, that it was not shown that a particular series of master reels, which were tendered in evidence and which were alleged to contain conversations involving the applicant, had been connected to a particular telephone service in respect of which a warrant had been issued by a judge under s.20 of the Telecommunications (Interception) Act 1979.

The other matters of evidence which the applicant sought to argue included a complaint that, in respect of various matters, insufficient weight was given by the magistrate. I indicated to counsel for the applicant my view that it was inappropriate for this Court, in the exercise of its discretion to become involved in a consideration of the details of evidence given before the magistrate, particularly in respect of matters which might well be cured at the trial.

Counsel also raised the question whether there was evidence to indicate the existence of a conspiracy. This latter matter would have required the Court to consider the total volume of evidence, which was voluminous, as well as the content of the 107 master reels. For the Court to become involved in those matters, would have had the result of interposing a third hearing and determination of matters of fact in respect of a procedure where the law contemplates a hearing at first instance by a magistrate to consider whether there is a prima facie case and then, if there is a trial, a determination of fact by a criminal court.

For reasons which have been explained in a number of cases, it is undesirable for a superior court to become involved in a determination of such matters. In Souter v Webb (unreported 11 July 1984) I collected and referred to the various decisions in this Court and in the Supreme Court of New South Wales in which the view had been expressed that, as a matter of discretion, a superior court should not become involved in such inquiries. In this Court, the leading authority is Lamb v Moss (1983) 49 ALR 533 in which a Full Bench of the Court made this observation at page 564:

"It is sufficient, for immediate purposes, to observe that there is a considerable body of authoritative judicial opinion that exceptional circumstances will generally be required before a superior court will consider interfering in commital proceedings, particularly at an interlocutory stage. Failure to permit criminal proceedings to follow their ordinary course will, in the absence of special circumstances, constitute an error of principle".

Lamb v Moss was a case in which review was sought of the conduct of the magistrate during the committal proceedings: but the principle also applies to decisions by a magistrate as to the existence, or otherwise, of a prima facie case: see Bourke v Hamilton (1977) 1 NSWLR 470, Gorman v Fitzpatrick (Foster J, 23 September 1983, unreported), Seymour v Attorney-General (Fitzgerald J, 8 May 1984, unreported).

It seems to me that all of the matters which are in the first class are classically matters subject to the principle in Lamb v Moss. Their determination would require this Court to spend a considerable time reviewing the facts of the case and, in effect, determining whether or not the magistrate reached a correct conclusion on the facts in holding that there existed a prima facie case. The Court would do so without the benefit of hearing or seeing any of the witnesses, but simply on the basis of reading the transcript and looking at the exhibits - including listening to the various tapes. As a matter of discretion, the court ought not to exercise its powers under the Administrative Decisions (Judicial Review) Act to undertake that task. I adhere to the view which I expressed in Souter v Webb that the Court should entertain a submission for review, upon the ground that there is no prima facie case, of a magistrate's decision to commit only where it is abundantly clear, without intricate consideration of the evidence, that there is a failure to establish a necessary ingredient in the charge.

The second class of issue falls into a slightly different category. Counsel for the respondents has agreed with the statement made by counsel for the applicant that the tapes were critical to the prosecution case. Indeed, he has indicated that, in the absence of the tape recordings, there would not be evidence sufficient to justify the committal of the applicant for trial.

Mr Papayanni, on behalf of the applicant, has argued that the tape recordings did not comply with the requirements of s.7(6) of the Telecommunications (Interception) Act 1979. There was evidence that a warrant had been issued under s.20 of that Act in relation to a particular telephone service, and the suggestion is that the reels which were tendered in evidence were recordings of conversations made by persons communicating from or to that service. The proposition for which Mr Papayanni contends is that, if recording equipment which is not under the control of the Telecommunications Commission is used in an interception, the interception is unlawful - notwithstanding the existence of a warrant. I confess that I have considerable difficulty in seeing the validity of this argument. It seems to me that s.20 is, in its terms, addressed to the interception of a communication to or from a service under the control of the Telecommunications Commission: but I see nothing in the definition of "communication" to indicate that the equipment used to record the communication must itself be under the control of the Telecommunications Commission.

The question arises in this case because the evidence before the magistrate was that the recording equipment used to record the alleged conversations was owned and controlled by the Australian Federal Police and not by the Telecommunications Commission. However, the argument did not reach finality because discussion occurred between counsel for the applicant and myself as to what would be the result of his proposition, if correct. Mr Papayanni conceded that, even if there had been an interception which went beyond the authority of the warrant, that fact did not, of itself, make the evidence inadmissible. He acknowledged that, in those circumstances, the magistrate would have had a discretion to determine whether or not to admit the evidence.

I suggested to counsel that, consistently with the view I had expressed about the use of the Administrative Decisions (Judicial Review) Act, it may be appropriate to consider the argument as to the compliance with the requirements of s.7 of the use of non-Telecommunication Commission equipment and that, if that argument was made out, it may be a proper course to remit the matter to the magistrate in order that he might consider whether he would admit the material in the exercise of his discretion. I made that suggestion without any firm view as to whether or not that would be an appropriate course, but because it appeared to me that the question raised under s.7 may be a discreet issue of principle not turning upon the detail of the particular case. However, Mr Papayanni indicated that he did not wish to pursue the argument if, in the end result, the matter would at best, from his point of view, be remitted to the magistrate: and in those circumstances he indicated that he did not wish to pursue this second aspect of the matter. Consequently, I have not heard full argument, and I express no concluded view. All that I will say is that I am far from persuaded that the fact that non-Telecommunications Commission equipment is used to record a communication, the subject of a warrant under s.20, results in any failure to comply with any provision in the Telecommunications (Interception) Act, or would require a court to consider whether it was necessary to exercise a discretion in favour of admission of the material.

In the circumstances, I have not heard counsel for the respondents other than to obtain some assistance from them as to the facts of the matter and the nature of the issues. In effect, the applicant has desisted from putting full argument on the evidentiary matters because of the view I have expressed as to the way in which the Court should approach the case. The applicant does not consent to the dismissal of the Application but accepts that this result is the inevitable result of my view. For that reason only the matter has not been fully debated.

The order I make is that the Application be dismissed and that the applicant pay the costs of the respondents.