Ex parte Coulston
[2000] TASSC 95
•21 July 2000
[2000] TASSC 95
CITATION: Ex parte Coulston [2000] TASSC 95
PARTIES:COULSTON, Daren Te Ariki Charles, ex parte
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M153/2000
DELIVERED ON: 21 July 2000
DELIVERED AT: Hobart
HEARING DATES: 20 June, 6 July 2000
JUDGMENT OF: Blow J
CATCHWORDS:
Administrative Law - Judicial review legislation - Commonwealth, Queensland and Australian Capital Territory - Powers and discretion of court - Review of committal proceedings - Claim for public interest immunity - Whether magistrate made a "decision" or "engaged in conduct" for purpose of a decision - Whether magistrate's decision of administrative or judicial character made under enactment - Jurisdiction of court to review.
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss9, 9A.
Young v Quin (1985) 4 FCR 483; Shepherd v Griffiths (1985) 17 A Crim R 129, followed.
Lamb v Moss (1983) 49 ALR 533; Grassby v R (1989) 168 CLR 1; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, discussed.
Aust Dig Administrative Law [29]
REPRESENTATION:
| Counsel: Applicant (D T A C Coulston): | D J Porter QC, (on 20 June 2000) |
| H M Wood (Magistrate): | T J Ellis |
| N E Williamson (Complainant): | M Rozenes QC, K E Read |
| C M Jansen: | P A Dunn QC |
A Tedesco, P B Turner, and M R Lee: | B McTaggart |
| Solicitors: Applicant (D T A C Coulston): | Dobson Mitchell & Allport |
| H Wood (Magistrate): | Director of Public Prosecutions (Tas) |
| N E Williamson (Complainant): | Director of Public Prosecutions (Cth) |
| C M Jansen, A Tedesco, P B Turner and M R Lee: | Jennings Elliott |
Judgment Number: [2000] TASSC 95
Number of Paragraphs: 22
Serial No 95/2000
File No M153/2000
IN THE MATTER OF THE JUSTICES ACT 1959
AND IN THE MATTER OF A COMMITTAL OF
CORNELIUS MARINUS JANSEN, ANTONIO TEDESCO,
PHILLIP BRUCE TURNER, DAREN TE ARIKI CHARLES COULSTON
and MERVYN ROBIN LEE FOR OFFENCES AGAINST THE CRIMES ACT 1914 (CTH); EX PARTE DAREN TE ARIKI CHARLES COULSTON
REASONS FOR JUDGMENT BLOW J
21 July 2000
On 6 July 2000 I dismissed for want of prosecution an application whereby the applicant sought writs of certiorari and mandamus, or similar relief, a declaration, and an order for a stay of committal proceedings. These are my reasons for doing so.
The applicant is one of five defendants who have been charged under the Crimes Act 1914 (Cth) with one count of conspiracy and with numerous counts of imposition. The charges allege the understatement of catches of orange roughy. Committal proceedings against all five defendants have been proceeding in the Magistrates Court for some months. On 31 May 2000 in those proceedings an officer of the Australian Fisheries Management Authority ("AFMA"), Mr Anderson, was being cross-examined by senior counsel for the applicant, Ms Powell. Apparently there had been evidence of a surveillance operation having been conducted in 1992. Ms Powell asked Mr Anderson whether, before that surveillance, he had some source material other than what came from the Tasmania Police. Mr Anderson replied, "I can't answer that on the grounds of public interest immunity". Ms Powell was not content with that response. It was necessary for the magistrate, Mrs Wood, to rule on the claim for public interest immunity. Counsel for the complainant, who was briefed by the Director of Public Prosecutions (Cth), asked to be heard in relation to the claim and was given an overnight adjournment. The next morning he tendered three affidavits in sealed envelopes that were said to relate to the public interest immunity question, and asked that the learned magistrate read them without disclosing their contents to the defence. Senior counsel for the applicant objected unsuccessfully to that course being taken. The learned magistrate received the three affidavits, did not disclose their contents to any of the defendants or their counsel, received submissions as to public interest immunity in general terms, and ruled that the claim for public interest immunity was justified without disclosing any of the evidence on which her ruling was based.
The originating application herein was filed on 19 June 2000. By it the applicant sought a general order for the learned magistrate to show cause why certain relief should not be granted, including a writ of certiorari quashing the decision to receive the three affidavits, a writ of certiorari quashing the decision to uphold the claim of public interest immunity, a writ of mandamus requiring the learned magistrate to disclose the three affidavits to the applicant or his legal advisers, a writ of mandamus requiring her to disclose the public interest identified and the basis of the claim for immunity in the affidavits, a writ of mandamus directing her to permit the applicant to advance a case with respect to the claim for public interest immunity, and a writ of certiorari quashing the ruling that Mr Anderson was entitled to refuse the question that had been asked about his sources.
On 20 June 2000, Mr Porter QC appeared for the applicant before me and sought an ex parte order requiring the learned magistrate to show cause why a writ of certiorari should not be granted to quash her decision to uphold the claim of public interest immunity, and to show cause why a writ of mandamus should not issue "ordering that the claim for public interest immunity be heard and determined in accordance with the law", upon grounds that there had been procedural unfairness, and that no magistrate could reasonably have upheld the claim for public interest immunity in the circumstances in which it was presented. The order then sought was narrower than the orders sought in the originating application. After hearing Mr Porter QC, I declined to make the order sought, adjourned the application for a general order, and directed service of an amended originating application on the learned magistrate's clerk, the complainant, and the applicant's co-defendants.
When the matter came before me again on 6 July 2000, Mr Rozenes QC submitted on behalf of the complainant that this court had no jurisdiction to grant any of the relief sought because of the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Act"), s9, the relevant parts of which read as follows:
"(1) Notwithstanding anything contained in any Act other than this Act, a court of a State does not have jurisdiction to review:
(a)a decision to which this section applies that is made after the commencement of this Act;
(b)conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision to which this section applies;
…
(2)In this section:
decision to which this section applies means:
(a)a decision that is a decision to which this Act applies; or
(b)…
…
review means review by way of:
(a)the grant of an injunction;
(b)the grant of a prerogative or statutory writ (other than a writ of habeas corpus) or the making of any order of the same nature or having the same effect as, or of a similar nature or having a similar effect to, any such writ; or
(c)the making of a declaratory order."
The following definition appears in s3(1) of the Act:
"decision to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1".
Mr Rozenes QC submitted that the upholding by the learned magistrate of the claim to public interest immunity constituted a decision to which the Act, s9 applies, on the basis that committal proceedings are proceedings of an administrative character, and that decisions made by a magistrate during committal proceedings involving alleged Commonwealth offences are decisions made under an enactment, namely the Judiciary Act 1903 (Cth), since s68(2)(b) thereof invests State courts with Commonwealth jurisdiction in relation to such committal proceedings. He further submitted that, if the upholding of the immunity claim by the learned magistrate fell short of constituting a decision to which the Act, s9 applied, what she did amounted to conduct that was engaged in for the purpose of making a decision to which that section applies, namely a decision whether or not to commit the applicant for trial.
It is well established that committal proceedings are ministerial or administrative, rather than judicial, in character: Ammann v Wegener (1972) 129 CLR 415, per Gibbs J at 435 - 436; Sankey v Whitlam (1978) 142 CLR 1, per Mason J at 83; Pearce v Cochiarro (1977) 137 CLR 600 at 607 - 609; Lamb v Moss (1983) 49 ALR 533 at 558; Grassby v R (1989) 168 CLR 1, per Dawson J at 11 - 17.
There are a number of reported cases in which the Federal Court of Australia has been asked to grant relief under the Act in relation to committal proceedings for Commonwealth offences. In Lamb v Moss (supra) a magistrate rejected a submission that a defendant should be discharged, held that a prima facie case had been made out against him, refused an application for certain Crown witnesses to be recalled for further cross-examination, and refused an application for a stay of the committal proceedings. The Full Court held that the magistrate's decisions or conduct were "under an enactment" in the relevant sense because the magistrate had been exercising jurisdiction conferred by the Judiciary Act s68(2). It was argued in that case that, although committal proceedings are administrative in character, the magistrate's decision that a prima facie case had been established was a decision of a judicial character. The Full Court held (at 559) that, although the magistrate had a duty to act judicially, ie, justly and fairly, his function remained administrative, and his decision was not judicial in character. Their Honours observed that the Act was intended to expose to review decisions by individuals and bodies acting administratively who were bound to act judicially and thus afford natural justice to persons likely to be affected by their decisions.
In another Full Court case, Young v Quin (1985) 4 FCR 483, a magistrate had ruled in the course of a committal involving charges under Commonwealth legislation that defence counsel were entitled to cross-examine a witness on the issue of a claim to public interest immunity. The Minister responsible for the operations of the Australian Federal Police applied to the Federal Court under the Act for a review of the magistrate's decision to permit such cross-examination. Wilcox J dealt with the application on its merits, and dismissed it: Young v Quin (1984) 56 ALR 168. On appeal, Bowen CJ, Sheppard and Beaumont JJ held that the magistrate was bound to disallow such cross-examination. It is significant that the Full Court did not apparently see any difficulty as to exercising the jurisdiction conferred by the Act, though it must be conceded that no submission was made as to the court lacking jurisdiction. Bowen CJ (at 483) and Beaumont J (at 491) each referred the magistrate's ruling as a "decision".
In Shepherd v Griffiths (1985) 17 A Crim R 129, Jenkinson J dealt with an application made under the Act in relation to a magistrate's ruling during committal proceedings that recordings of intercepted telephone conversations could not be received as evidence. The application was made on the basis that the ruling was a decision made under the Judiciary Act. The ruling did not involve the exercise of any sort of statutory discretion, but a mechanical application of the Telecommunications (Interception) Act 1979 (Cth) s7(6)(c). At 134 Jenkinson J decided that the decision whether or not to receive evidence was a decision to which the Act applied, and that the communication to counsel for the parties of the magistrate's ruling as to the admissibility of the recordings constituted conduct that was reviewable pursuant to the Act.
On the basis of Young v Quin and Shepherd v Griffiths I consider that the decision whether to commit the applicant for trial would constitute, for the purposes of the Act, a decision made under the Judiciary Act.
In Emanuele v Cahill (1987) 25 A Crim R 115, Neaves J held that a magistrate's decision to refuse a permanent stay of proceedings constituted a decision reviewable under the Act. The proceedings were for an offence punishable either on indictment or on summary conviction. The magistrate had the power either to determine the proceedings or to commit the applicant for trial. Although the power to grant a stay of proceedings did not derive from an enactment, he considered that the decision not to grant a stay was one made under an enactment because the power to make such a decision had its source in provisions of the Magistrates' Court Ordinance 1930 which established the Magistrates' Court (ACT).
In this case, Mr Robertson submitted on behalf of the applicant that the upholding of the public interest immunity claim amounted to a decision of judicial character, rather than one of an administrative character. He stressed that the immunity claim was not one raised by the complainant in the proceedings, but one raised by a witness who was not a party to the criminal proceedings. He submitted that a magistrate who deals with a contempt in the course of a committal proceeding makes a decision of a judicial character, and argued that the determination of a public interest immunity claim in the course of a committal should be regarded in the same way. I reject that submission. I agree that any decision made by a magistrate who deals with a contempt in the course of a committal is not a decision of an administrative character but, in my view, the committal proceedings are interrupted whilst the contempt is dealt with in that situation. It is true that the public interest immunity claim in this case was made by a claimant who was not a party to the proceedings before the learned magistrate, but in my view the determination of that claim still formed part of the committal proceedings, whereas any decision made in the course of dealing with a contempt would not. As Lamb v Moss establishes, the mere fact that the learned magistrate was required to act judicially in making a determination in the course of a committal does not make that determination judicial, rather than administrative, in nature. I do not see that it makes any difference that the interests of a stranger to the litigation, the witness Anderson, were affected by the determination. It was, after all, no more than a determination as to what cross-examination would or would not be permitted. A similar situation arises whenever a witness claims legal professional privilege or privilege against self-incrimination.
Mr Robertson pointed out that Young v Quin, Shepherd v Griffiths, and Emanuele v Cahill (supra) were all decided before the High Court's decision in Grassby v R (supra) and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. This is true but, in my view, neither of those High Court cases makes any difference to the view that should be taken as to the applicability of the Act to decisions and/or conduct on the part of magistrates during committal proceedings relating to alleged Commonwealth offences. In Grassby, the High Court held that a magistrate had no inherent power to order a stay of committal proceedings as an abuse of process. The magistrate had not been exercising Commonwealth jurisdiction. The case establishes that a magistrate hearing committal proceedings, although exercising an administrative function, is sitting as a court and is bound to act judicially. But, as can be seen from Lamb v Moss (supra), it does not follow that any decisions or conduct on the part of a magistrate hearing committal proceedings are of a judicial character, as distinct from an administrative character.
Bond concerned the distinction between a decision to which the Act applies and conduct engaged in for the purpose of making such a decision. Under the Act, s5, a person who is aggrieved by a decision to which the Act applies may apply for an order of review in respect of the decision. Under the Act, s6, where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which the Act applies, a person who is aggrieved by the conduct may apply for an order of review. Applications had been made under the Act for the review of various findings made by the Australian Broadcasting Tribunal, including findings that a Mr Bond would not be considered a fit and proper person to hold a commercial broadcasting licence, and that therefore entities controlled by him were no longer fit and proper persons to hold such licences. All five members of the bench held that the findings concerning Mr Bond, and other findings of fact made in the case, did not constitute reviewable decisions or reviewable conduct, but only steps in the Tribunal's reasoning process. At 337 - 338 Mason CJ said the following:
"To interpret 'single decision' in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process.
…
If 'decision' were to embrace procedural determinations, then there would be little scope for review of 'conduct', a concept which appears to be essentially procedural in character.
…
The interpretation of 'decision' which I favour is not as broad as that preferred by the Federal Court in Lamb v Moss.
…
My view is more in accord with the tentative opinion expressed earlier by Ellicott J in Ross v Costigan (1982) 59 FLR 184 at p197; 41 ALR 319, at 331 when he said that 'it may well be that the word "decision" means an ultimate or operative determination not a mere expression of opinion or a statement which can of itself have no effect on a person'. However, I would not wish for myself to place emphasis on the words 'of itself' in this statement. To say that a reviewable decision is an ultimate or operative determination does not mean that antecedent conclusions or findings which contribute to the ultimate or operative decision are beyond reach. Review of an ultimate or operative decision on permissible grounds will expose for consideration the reasons which are given for the making of the decision and the processes by which it is made.
Lest it should be thought otherwise, I should say that, to the extent in Lamb v Moss that the magistrate decided that a prima facie case had been established and that he would proceed with the committal proceedings, a reviewable decision had been made."
At 365 Brennan J agreed with Mason CJ. At 369 Deane J agreed with the relevant parts of the judgment of Mason CJ. At 377 Toohey and Gaudron JJ said this:
"A decision under an enactment is one required by, or authorized by, an enactment. … The decision may be expressly or impliedly required or authorized. … If an enactment requires that a particular finding be made as a condition precedent to the exercise of or refusal to exercise a substantive power, a finding to that effect is readily characterized as a decision 'under an enactment'. However, it is otherwise with respect to findings which are not themselves required by an enactment but merely bear upon some issue for determination or some issue relevant to the exercise of a discretion. Findings of that nature are not themselves 'decisions under an enactment'; they are merely findings on the way to a decision under an enactment."
In the light of Bond, I believe that I should take a narrower view of what constitutes a "decision" than was taken in the earlier Federal Court cases to which I have referred. Accordingly, I consider that the learned magistrate in receiving the three affidavits, deciding not to disclose them or their contents to the applicant or his legal advisers, not informing the applicant or his counsel as to the basis for the claim of public interest immunity, upholding that claim, deciding not to disclose the basis of that claim, and giving reasons for upholding the claim without disclosing its basis, did not make any decision to which the Act applies. But in my view each of those acts, decisions and deliberate omissions on the part of the learned magistrate amounted to conduct engaged in for the purpose of making a reviewable decision, namely a decision whether or not to commit the applicant for trial. Such conduct is reviewable pursuant to the Act, s6, and must fall within the scope of the Act, s9(1)(b). When it is necessary to consider the distinction between reviewable conduct and steps in a proceeding falling short of reviewable conduct, I think it is significant that one of the grounds upon which conduct or proposed conduct can be reviewed is, by virtue of the Act, s6(1)(a), "that a breach of the rules of natural justice has occurred, is occurring, or is likely to occur, in connection with the conduct". I think it must follow that, as a general rule, failing to afford a party to a committal proceeding procedural fairness, or deliberately departing from the usual rules of procedural fairness, will amount to reviewable conduct. In Bond at 342, Mason CJ said, "… the continuation of proceedings in such a way as to involve a denial of natural justice would amount to 'conduct'."
Counsel for the applicant and all his co-defendants conceded that, if the court lacked jurisdiction in relation to any of the remedies sought in the originating application as a result of the operation of the Act, s9, it had no jurisdiction in relation to any of the remedies sought. It was not submitted that, if the subject matter of the originating application constituted reviewable conduct, what the court was being asked to do was anything other than to "review" that conduct within the meaning of s9.
In my view all that the originating application seeks is a review of conduct engaged in for the purpose of making a decision to which the Act applies, namely a decision of an administrative character (whether or not to commit the applicant for trial), which is proposed to be made under an enactment (the Judiciary Act).
The jurisdiction conferred by the Act has been limited by s9A thereof, which took effect on 30 May 2000. The relevant provisions of that section read as follows:
"MANUAL
(1) Subject to subsection (2), at any time when:
(a)a prosecution for an offence against a law of the Commonwealth, a State or a Territory is before any court; or
(b)an appeal arising out of such a prosecution is before any court;
no court has jurisdiction to hear, continue to hear or determination an application under this Act, by the person who is or was the defendant in the prosecution, in relation to a related criminal justice process decision.
(2)Subsection (1) does not apply if an applicant has commenced an application under this Act before the commencement of a prosecution for an offence against a law of the Commonwealth, or of a State or a Territory.
…
(4)In this section:
…
related criminal justice process decision, in relation to an offence, means a decision (other than a decision to prosecute) made in the criminal justice process in relation to the offence, including:
(a)a decision in connection with the investigation, committal for trial or prosecution of the defendant; and
(b)a decision in connection with the appointment of investigators or inspectors for the purposes of such an investigation; and
(c)a decision in connection with the issue of a warrant, including a search warrant or a seizure warrant; and
(d)a decision requiring the production of documents, the giving of information or the summoning of persons as witnesses; and
(e)a decision in connection with an appeal arising out of the prosecution."
There is no suggestion that any application under the Act was made by the applicant prior to the commencement of the relevant prosecution. The provisions of s9A(1) therefore apply in relation to that prosecution. Thus, no application can be made under the Act by the applicant in relation to a "related criminal justice process decision" in relation to his alleged offences. Surprisingly, the provisions of s9A relate only to decisions that would otherwise be reviewable, as distinct from reviewable conduct. The section is absolutely unambiguous in this respect. If an application were made under the Act for the review of conduct engaged in by a magistrate for the purpose of making a decision whether to commit a defendant for trial, the Federal Court would no doubt take into account the policy reasons underlyng the enactment of the section and thus be most reluctant to grant relief other than in extraordinary circumstances but, in my view, such conduct remains reviewable under the Act.
It follows that, by virtue of the Act, s9(1)(b), this Court, as a court of a State, does not have jurisdiction to review that conduct.
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