Fermia, Samuel v Derrick Hand Esq

[1984] FCA 131

Re: SAMUEL FERMIA
And: DERRICK HAND ESQ. and WILLIAM RAYMOND DONALDSON
No. G. 119 of 1984
53 ALR 731/1 FCR 336
Administrative Law - Criminal Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.(1)

CATCHWORDS

Administrative Law - application for judicial review of decision of Magistrate made in course of committal proceedings - applicant charged with conspiracy - decision of Magistrate to follow terms of s. 41 of Judiciary Act and either discharge or find prima facie case against applicant before completion of prosecution evidence against all alleged co-conspirators - whether decision susceptible of being reviewed - principles involved in review of such decisions.

Administrative Decisions (Judicial Review) Act, 1977

Administrative Law - Judicial Review - Conduct of committal proceedings - Conspiracy - Whether magistrate may commit or discharge alleged conspirator before all Crown evidence against all co-conspirators completed - Justices Act 1902 (N.S.W.), s. 41.

Criminal Practice and Procedure - Conduct of committal proceedings - Conspiracy - Whether magistrate may commit or discharge alleged conspirator before all Crown evidence against all co-conspirators completed - Justices Act 1902 (N.S.W.), s. 41.

HEADNOTE

In committal proceedings, a prosecutor is entitled to close his case against one conspirator before closing his case against co-conspirators and the magistrate may either commit or discharge one conspirator in such circumstances, notwithstanding that the Crown case against co-conspirators has not been closed.

Observations concerning the undesirability, save in exceptional circumstances, of a superior court interfering with committal proceedings, and concerning the purpose of committal proceedings.

HEARING

Sydney, 1984, April 13, 18, 19. #DATE 19:4:1984

APPLICATION.

Application for orders of review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth).

B. Larbalestier Q.C. and P. Beale, for the applicant.

B. Tully Q.C. and N. Cowdrey, for the respondents.

Cur. adv. vult.

Solicitors for the applicant: Spencer Whitby & Co.

Solicitor for the respondents: T. A. Sherman, Acting Commonwealth Crown Solicitor.

G.F.V.

ORDER

1. The application be dismissed.

2. The applicant pay the costs of the first respondent as a submitting reespondent and the costs of the second respondent.

Application dismissed with costs.

JUDGE1

This is an application under the Administrative Decisions (Judicial Review) Act 1977 (the "Judicial Review Act") for an order of review of a decision of the first respondent, a stipendary magistrate, in the course of lengthy committal proceedings against the applicant Samuel Fermia and others, relating to charges for conspiracy to import heroin into Australia from Hong Kong. The evidence gives only the broadest account of the committal proceedings, the charges against the applicant and the other persons the subject of those proceedings. This is not surprising because the committal proceedings were commenced in November 1983 and have continued since then, although somewhat intermittently, and still are continuing. They have occupied many days of hearing.

1. The committal proceedings are approaching their conclusion. On Friday, 6 April 1984, senior counsel for the prosecutor informed the learned Magistrate that he intended to close his case against the applicant on the following Monday, 9 April, after he tendered certain material. It was in fact on Tuesday, 10 April, that senior counsel tendered that material and announced the closing of the prosecution's case against the applicant on all charges.

2. The Magistrate stated in effect that he proposed to follow the course chartered by s. 41 of the Justices Act, 1902 namely, either to order that the applicant be discharged or, if he was of the opinion that a prima facie case had been made out, to permit the applicant to call evidence and then determine whether he ought to be committed for trial. The prosecutor has since called other evidence in the committal proceedings against other defendants; but it is common ground that nothing has transpired in the committal proceedings which jeopardises whatever rights the applicant may have in the proceedings before this Court.

3. It is not disputed before me that this Court has jurisdiction to determine the matter before it and that the decision of the Magistrate under challenge is of a kind susceptible of review under the Judicial Review Act: see Lamb v. Moss (1983) 49 ALR 533. Lamb v. Moss also makes plain that this Court has a discretion to refuse relief notwithstanding that the statutory pre-conditions to the grant of relief have been satisfied. It is also clear from that judgment that the power to make an order of review under the Judicial Review Act in respect of committal proceedings should be exercised only in exceptional circumstances, especially in respect of a decision like the present one, made in the course of committal proceedings: see Lamb v. Moss at page 546.

4. Once this application for review was brought under the Judicial Review Act, the Magistrate, very properly, decided to take no step in the committal proceedings adverse to the interests of the applicant pending the determination of the proceedings before this Court, which were commenced as recently as last Friday. The hearing concluded yesterday; but it is not a case where the court can adjourn the application for judicial review until committal proceedings have concluded because any right which the applicant may have under the Judicial Review Act will by then, at least for all practical purposes, have been rendered nugatory. Hence his application must be determined now.

5. The evidence has not fully encompassed all matters relative to the issues in this case and much of the material before me consisted of statements from the bar table, from which (and I do not say this critically) it was not always easy to distinguish between statements of fact and argument. These and other difficulties arise in the determination of cases such as this because they are the consequence of the fact that decisions made in committal proceedings are susceptible of orders of review under the Judicial Review Act during the pendency of the committal proceedings.

6. I add my voice in support of the view that it is only in exceptional circumstances that a superior court will consider interfering with committal proceedings, especially in relation to decisions made before the proceedings have concluded. On the other hand of course, if an applicant has a right which is in fact in jeopardy during the course of committal proceedings, then the Court must not be slow to interfere so as to protect that right in an appropriate case.

7. The charges against the applicant are:
   
   

1. that between about 26 June 1982 and about 9 September 1983 he conspired with five named persons and divers other persons to import heroin contrary to paragraph 233B(1)(cb) of the Customs Act 1901;

2. that on or about 9 August 1983, being a Commonwealth officer, he received property, namely a sum of money, for himself on the understanding that the exercise by him of his authority as a Commonwealth officer would be influenced contrary to sub-s. 73(2) of the Crimes Act, 1914 (Cth);

3. that between 1 March 1983 and 14 August 1983 he wilfully interfered with a telecommunications installation belonging to the Australian Telecommunications Commission contrary to the provisions of s. 90 of the Telecommunications Act 1975 (Cth); and

4. that between about 1 January 1983 and about 9 September 1983 he conspired with two named people and divers other persons to import heroin contrary to para.233B(1)(cb) of the Customs Act.

The role which the applicant is said to have played in the matters the subject of the charges is that, as an officer of the Australian Telecommunications Commission, he agreed to ensure that telephone interception devices were either not installed or, if installed, were removed and that he acted in conformity with that agreement.

1. The applicant asserts that the decision of the Magistrate that he proposed to implement the provisions of s. 41 of the Justices Act in its application to the case against the applicant, should be reviewed on the ground that it constituted a denial of natural justice to the applicant in that:
   
   

(a) the applicant will be thereby precluded from participating in the balance of the committal proceedings against the other defendants and in particular from cross-examining the witnesses whom the prosecutor will call in relation to the conspiracy to which the applicant is alleged to have been a party;

(b) the applicant will be forced to elect whether to call evidence before the prosecutor has called the remaining evidence against the other alleged conspirators; and

(c) the applicant will be required to address the Magistrate on the question whether a prima facie case has been made out against him before the whole of the evidence against the other alleged conspirators has been called.

1. The applicant also asserts that the Magistrate's decision under challenge in this case is wrong in law because he is in effect permitting the prosecutor to close his case against the applicant before all the evidence for the prosecution against the other alleged conspirators has been called. Other submissions were advanced on behalf of the applicant but they are, in effect, refinements of the points which I have summarised above.

2. It is well established that the function of a committal proceeding is:
   
   

"to ensure that no one shall stand his trial unless a prima facie case has been made out. The prosecution have the duty of making out a prima facie case, and if they wish for reasons such as the present not to call one particular witness, even though a very important witness, at the committal proceedings, that in my judgment is a matter within their discretion, and their failure to do so cannot on any basis be said to be a breach of the rules of natural justice."

R. v. Epping and Harlow Justices, Ex parte Massaro (1973) 1 QB 433 per Lord Widgery C.J. at p 435.

1. In Moss v. Brown (1979) 1 NSWLR 114 at pp 125-126 the Court of Appeal of New South Wales said in relation to those sections of the Justices Act involved in this case, in particular s. 41:
   
   

"The first objection is that it misconceives the nature and purpose of a magisterial inquiry which, as already indicated, is to receive, examine and permit the testing of, evidence introduced by the prosecutor before the inquiring magistrate in order to determine whether there is sufficient evidence to warrant the person charged being put on trial and, if not, to discharge that person. That this is so is clear from s. 41. It is true that in practice the occasion, or the evidence given, is often used for other purposes. Thus the inquiry is often availed of to have a kind of a dress-rehearsal for the trial, so that risky questions are asked at the inquiry, to the intent that unfavourable answers given during the cross-examination of a Crown witness will be filtered from the evidence put before the jury. The inquiry is often used for other tactical purposes unconnected with persuading the magistrate to commit for trial. It is also true that, as Jordan C.J. pointed out in Cousens case, the depositions may provide the Attorney-General with "useful material" to enable him to decide whether he will file an indictment, whatever the magistrate's decision might have been. However, it is no part of the function of the inquiry, or the duty of the committing magistrate, to ensure these uses are served, so that it is not open to argue that the inquiry, or its conduct, is unjust, because these uses are not served, or not served in a way most beneficial to the person charged. This view is supported by the decision in R. v. Epping and Harlow Justices and Re van Beelen. If material, whether in the form of a deposition, a statement or a document, is not part of the evidence at an inquiry into a charge against a particular person, but is subsequently used in a way which is unfair to that person, then this is not properly a matter of complaint concerning the conduct of the inquiry, but concerns the conduct of the person who later acts unfairly. There are well accepted practices, based on principles of fairness, as to giving of proper notice to an accused person that material not produced at the inquiry is intended to be used at the trial. However, the mere circumstance that such material has not been produced at the inquiry and, therefore, the accused has not had an opportunity to pre-test it by cross-examination, does not render its use unfair. In any event, any question of fairness is a matter for the judge who presides at the trial. Such questions have no relation to the conduct of the magisterial inquiry, and hence cannot arise in a proceeding such as the present, taken in reference to such an inquiry.

Finally, any unfairness apprehended in the present case is hypothetical and intervention premature. In any event, the remedy sought is inappropriate. In any discussion of fairness, it is imperative to consider the position of all parties. It is sometimes forgotten that the Crown has rights and, as it has a heavy responsibility in respect of the invoking and enforcement of the criminal law, which includes seeing that the public revenue is not imposed upon, it is entitled to maintain those rights, even if they may bear heavily upon some accused. As Lord Goddard C.J. said in R. v. Grondkowski: 'The judge must consider the interests of justice as well as the interests of the prisoners'."

1. Notwithstanding that two or more persons are charged
   with conspiracy, the magistrate hearing the committal proceedings must consider and treat the case of each defendant separately from the case of each other defendant and must carefully distinguish between evidence led by the prosecution against one defendant and admitted only against him from evidence admitted against other defendants: Smith v. R. (1970) 120 CLR 572: R. v. Darby (1982) 148 CLR 688; and Kannsangara v. R. (1951) AC 1 at p 6.

2. These considerations support the conclusion that the prosecution was entitled to close its case against the applicant when it chose to do so. The applicant may then call any evidence he wishes before the Magistrate determines whether he should be committed for trial. The fact that the committal proceedings will continue against the other alleged conspirators does not in my view entitle the applicant to assert a right to play any further role in the proceedings which continue against the remaining defendants.

3. There are well-established practices which will prevent any unfairness to the applicant if he be committed for trial and the Crown seek to adduce evidence at his trial not led during the committal proceedings before the applicant was committed for trial, but led thereafter against the remaining defendants.

4. The application should be dismissed with costs. The orders of the court are:
   
   1. That the application be dismissed.
   2. That the applicant pay the costs of the first respondent
   

as a submitting respondent and the costs of the second respondent.