Fingleton v The Queen

[2005] HCATrans 5

[2005] HCATrans 005

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B58 of 2004

B e t w e e n -

DIANE McGRATH FINGLETON

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 1 FEBRUARY 2005, AT 10.23 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR S.J. HAMLYN-HARRIS, for the appellant.  (instructed by Woods Prince Lawyers)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR M.J. COPLEY, for the respondent.  (instructed by Director of Public Prosecutions (Qld))

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, on the question whether the combined operation of section 21A, as it was then numbered, of the Magistrates Act 1991 (Qld) and section 30 of the Criminal Code should have been a complete answer to the alleged criminal responsibility of my client, the position of the parties as now seen in the written submissions is very narrowly divided indeed. Using as the focus of that description paragraphs 64 and 65 of my learned friends’ written submissions, it appears plain that the difference is one of statutory interpretation, that is, paying regard to the text, and that it comes down to one point only, namely, whether the administrative functions or powers in question are functions or powers which are bestowed or created by statutes other than the Magistrates Act itself or by statutes including the Magistrates Act itself. 

For the reasons we have sought to develop in writing already, it can be seen, therefore, that the so‑called immunity point is one which is purely statutory.

KIRBY J:   Ultimately, it is a question of applying section 21A ‑ ‑ ‑

MR WALKER:   And 30.  They are yoked together.

KIRBY J:   Well, maybe that may solve one problem I have.  Does the question arise, which is a jury question, as to whether the magistrate has, in the performance or exercise of an administrative function, acted in a certain way, or whether, in this case, as the Court of Appeal seemed to conclude was open to the jury, acted in a way which was variously described as being done by reason of anger, malice, bad temper, inappropriate conduct and so on?

MR WALKER:   Can I try to unravel the application of the different statutory provisions which are before your Honours, so as to answer your Honour’s question in stages.  The first proposition is that section 119B of the Code, which creates the offence of which my client was convicted, does indeed pose for the jury, before whom any such trial is held, questions concerning what might be called loosely the state of mind; that is, the nature of conduct, the character of conduct, so as to answer at least two questions raised by the terms of that statutory provision.  The first is the question of characterising conduct as retaliation and the second, which cannot really be sensibly completely segregated from the first, is whether the conduct is “because of” certain conduct on the part of, in this case, somebody dubbed a witness.

GUMMOW J:   Is there not a question as to what the words “a person” mean in 119B?

MR WALKER:   Yes, there is.  Can I first then complete the stage of my answer that says of course, as the Court of Appeal held and as any reading, in our respectful submission, of 119B yields in any event, something concerning what might be called generally the state of mind ‑ I am trying to distinguish from the particular elements of state of mind called motive at the moment - is raised by section 119B, but there is an anterior question which has to be answered when it is alleged that certain persons have been guilty of an offence against section 119B. 

The first aspect of that question is raised by the point brought to attention by the Court, namely whether section 21A and section 30 - that is shorthand for section 21A as then numbered of the Magistrates Act and section 30 of the Criminal Code – whether their combination would prevent any such conduct, and I think I can add regardless of state of mind, nefarious under section 119B or not, from constituting an offence when the conduct alleged is that, as I say, of a certain person in a certain set of circumstances. The nature of that person or personage is called up by section 21A and section 30, as are the circumstances which bestow that protection or immunity to use the statutory language.

In that inquiry – the next stage of my answer to Justice Kirby – it would appear particularly from the terms of section 30 that the state of mind, which but for that protection or immunity would be at the heart of the jury decision on section 119B, will not matter.  There may need to be qualifications to that, which would arise in cases other than the present case before this Court, that is, with different facts.  Can I seek to develop that last part of my answer to Justice Kirby slightly as follows ‑ ‑ ‑

KIRBY J:   Can I just indicate that I asked the question because I am affected by the fact that at the end of their reasons, the Court of Appeal said, “If it matters, though it is probably irrelevant, we have examined the record and studied the transcript” – which I have not yet had the time to do – “for the whole trial and we have no reasonable doubt as to the guilt of the appellant of the offence” – in effect, of trying to retaliate against a person because they were giving a witness statement before an inquiry.  That is a serious conclusion to have expressed.

MR WALKER:    Yes, but it is a conclusion which either serves the purpose of making a finding or a judicial holding under section 119B or not, and for the appellate Bench that involved considering what was open to the jury and what was not open to the jury.  That expression of opinion in the Court of Appeal, though entitled to the weight that your Honour suggests it should be accorded, nonetheless does not preclude inquiry as to the merit or otherwise of the grounds we raise under 119B.  Could I go ‑ ‑ ‑

KIRBY J:   But it may be relevant to the question of how far one pushes the application of section 21A, given that the general presumption of the law is against immunities, especially of the criminal law. We are all equal before the law in the application of the criminal law, whoever we are.

MR WALKER: Yes, with respect. Subject to the Bench’s desires, if I may, having very briefly opened on the question of the proper interpretation of sections 21A and 30, I did intend then to complete a short address supplementing our written submission on what I will call a section 119B challenge quite in order to provide a concrete situation against which the Court must, we accept, measure the implications and ramifications not only in this case but in other cases of the interpretations which the parties offer of those provisions, 21A and 30. That is one of the reasons we draw to attention that on the written submissions between the parties in this Court, the difference between us on that interpretation of 21A and 30 has been very plainly narrowed by paragraphs 64 and 65 of the written submission by the respondent to this question of: what are the available statutory sources of administrative functions and powers, the exercise of which will be protected by the protection and immunity provided by those provisions?

With respect, we accept Justice Kirby’s note that an understanding in operation practically in the concrete case of an actual offence which would otherwise be made out is a legitimate and proper test or pressure to put on the interpretation the parties offer of sections 21A and 30. Could I just finish, however, the last stage of my answer to Justice Kirby concerning what I have been calling “state of mind”.

In section 30 of the Criminal Code your Honours will have seen, in a form which is common to all the Code States, even in Tasmania, which alone adds a good faith requirement, will have seen that the protection is provided – that is, the non-existence of criminal responsibility is provided:

although the act done is in excess of the officer’s judicial authority, or although the officer is bound to do the act omitted to be done.

Concentrating on the first of those cases, “excess of authority” is of course a compendious phrase which will describe a number of ways in which an act may be vitiated by departure from the constating statutory provision requiring or permitting the act to be done and to have official force and effect.  But for the law of judicial immunity, including previous common law, there is a full panoply, familiar from administrative law, of vitiating factors which might lead a court, using ordinary legal language in an ordinary way to say that conduct was in excess of authority, for example, a denial of procedural fairness or acting under the influence of actual bias.

It is for those reasons that, in our submission, it is clear that those very broad words in section 30, which can be seen to be a statutory response to common law uncertainties which were variously described or existing depending whether judicial officers were in superior courts or inferior courts – those statutory words finished off that previous common law controversy for the purposes of cases such as my client’s, by providing the absence of criminal responsibility notwithstanding, to adapt the language of section 30, that the thing done in the exercise of the relevant function was done in excess of judicial authority.

KIRBY J:   Yes, but the key to it is the relevant function and it is defined as the officer’s judicial function.  Now, you do not ‑ ‑ ‑

MR WALKER:   No, but that is why section 21A and section 30 are yoked.

KIRBY J:   I realise that, but, on its own, 30 is of no help to you.  It is addressing a different realm of discourse, namely, performance of judicial functions.

MR WALKER:   Yes.

KIRBY J:   Which on every account this was not.

MR WALKER:   No.  That is, I am agreeing with your Honour.

McHUGH J: The only issue is, is it not, your opponent is driven to contend that his only answer is that section 21A only protects non‑judicial functions conferred by Acts other than the Magistrates Act?

MR WALKER:   That is right.

McHUGH J: And it seems to assume that if section 10 was in another Act it would be protected.

MR WALKER:   That is right.  May I then go straight – and I am obliged to your Honour, I will do things in a different order ‑ ‑ ‑

McHUGH J:   That is the only issue.

MR WALKER:   Yes.

GLEESON CJ:   Well, just before you go away from section 30, I would like to ask you a question about it.

MR WALKER:   May it please your Honour.

GLEESON CJ:   Is it in its original form?

MR WALKER:   Yes.

GLEESON CJ:   And there are, as you may have seen, those notes of Sir Samuel Griffith about the Code and indications as to which parts are supposed to be reflective of the common law and which are not.  Is that one supposed to be reflective?

MR WALKER:   I cannot tell you, but I will be in a position to do so ‑ ‑ ‑

GLEESON CJ:   Do you know the notes I mean?

MR WALKER:   Yes, I do.  I am not in a position to say.

GUMMOW J:   It is probably common law.

GLEESON CJ:   Probably common law.

MR WALKER:   I think the word “probably” captures what I was trying to say about this controversy, various or variously existing depending upon one’s views of different levels in the judiciary.

GLEESON CJ:   We could put that as a heading of our judgments:  “Probably Common Law”. 

MR WALKER:   Yes.  I invite your Honours to do so.  However, what is important is that the word “probably” shows, if one likes, Sir Samuel’s partisanship in what, we respectfully submit, is clear from the books was a controversy, and also shows, if one likes, the prescience in terms of later developments, much later developments, of Sir Samuel.  But the key that we depend on is that this was a statutory text selected so that the meaning of its words and not pre‑existing common law doubts or conjectures would govern the position thereafter.

GLEESON CJ:   Now, does this mean that putting aside any question about the difference between judicial and administrative functions and dealing only with the case that is purely judicial, section 30, that section 30 produces the consequence that if it were alleged against a judge that the judge embarked on a punitive exercise contrary to section 119B in, for example, a civil case and maliciously decided a civil case against a litigant in retaliation for the litigant having done one of the things described in section 119B, and that were proved or admitted, the judge would not be liable to prosecution because of section 30?

MR WALKER:   Yes, the judge would be liable to a number of other things, but not to that.

GUMMOW J:   Section 119B would be a possibility, would it not?

MR WALKER:   Well, 119 ‑ ‑ ‑

GUMMOW J:   Sorry, 120, I mean.

MR WALKER:   Yes, 120 and 119B display the very discrimination which the opening words of section 30 invite future legislators to have regard to.  It commences, “Except as expressly provided by this Code, a judicial officer”.  Now, section 120 is an express provision, as can be seen from the opening words of paragraph 120(1)(a) in relation to judicial officers.  Section 119B is not.

GLEESON CJ:   What would be the contravention of 120 in the example I gave?

MR WALKER:   In the case of punitive conduct, 120 would not apply.  I think the same is equally true of 140, which might be called - your Honours do not have it, I regret to say, but your Honours will be familiar with it:

Any person who attempts, in any way not specially defined in this Code, to obstruct, prevent, pervert, or defeat, the course of justice is guilty of a misdemeanour, and is liable to imprisonment for 2 years.

It comes perhaps significantly at the end of Chapter 16.  It does appear by its very terms to be a residual category, but it is not an express provision in relation to judicial officers as contemplated as being possible by the opening words of section 30, exemplified in the case of bribery and the like by the terms of section 120.  Your Honour the Chief Justice’s example, as obtained from the answer, section 30 means that in such a case section 119B is not an offence of which that judge is capable of being held guilty.

GLEESON CJ:   And you cannot point to any other offence of which that judge would be capable of being held guilty?

MR WALKER:   No, not in the Code, and that means no.

GLEESON CJ:   When the Code was enacted in 1899, was the expression “judicial officer” used in it?

MR WALKER:   No.

GLEESON CJ:   That is a fairly modern expression, is it not?

MR WALKER:   Yes.  Could I give your Honour a better safer answer about that?

GLEESON CJ:   Please.  I imagine that at the time the Code was enacted, and for many years afterwards in Queensland, most magistrates were not lawyers.

MR WALKER:   Yes, and that is not peculiar to Queensland.

McHUGH J:   “Judicial officer” was not defined until 2002, I think.

MR WALKER:   And, as is well known, Queensland is one of those places where there have been some very important amendments in relation to the magistracy very recently.

GLEESON CJ:   I would like to know more that I do at the moment about the history of section 30.

MR WALKER:   Yes.  We will supply either after a break, if that is relevant to today’s proceedings, or with your Honours’ leave by a note tomorrow, that matter.

GLEESON CJ:   Thank you.

KIRBY J:   You say, “as is well known”.  Do not assume that I am familiar with the developments of the Queensland magistracy.

MR WALKER:   We have drawn attention in our written submissions to some of them and we will add that to the material, your Honour. May I say this, however, that it is section 30 in the form before your Honours which governs the position of this case. At the relevant time, there is no doubt but that my client was a judicial officer, just as, when one comes to section 21A, there is no doubt but that my client is within the class of personage addressed by those provisions. So that section 30, assuming it has a history rooted in the common law, in particular, of what might be called “judges” – as that word was understood in the 1890s – has unquestionably, before the events in question in this case, been transformed so as to encompass the position, the conduct, the misconduct of persons in my client’s position as well.

The significance of that is that that encompassing of what might have been a wider class of personage included the unchanged and what might be called “blanket” coverage of the immunity, that is, the lack of criminal responsibility, conveyed by section 30 in terms contemplating that there might not be any offence committed by a judge or judicial officer in circumstances where anybody else would have committed an offence.

Furthermore, for a certain conduct, it therefore followed that the very terms of section 30 contemplated that such a judge may not be criminally responsible at all.  Those are, after all, the terms of section 30, “not criminally responsible”.  So that it is not an aid for the respondent’s contended interpretation to observe that what might be called an inconvenience, absurdity or horror is raised by an interpretation, contended for by us, under which a judicial officer would escape all criminal responsibility for conduct of the kind that the Chief Justice has illustrated.  That is in fact the purpose of section 30, with a recognition that the Code may provide otherwise.

In discussions of judicial immunity, judicial conduct and judicial misconduct, since ancient times, bribery and like corruption has been, of course, a classic example of that which is the negation of all that a judge should be.  That presumably is why there is specific dealing with it in terms which prevent section 30 operating in section 120.  But there are many other negations or detractions from judicial function, including the operation of malign motive or unworthy sentiment, such as the Chief Justice has illustrated in the example given to us.  They have not yet been the subject of specific or express provision in the Code – perhaps one day they will – leaving the sanction against judges who stray from the merely obstreperous into the vengeful, for example, leaving that sanction, the constitutional one, with all its bluntness of removal.

Now, that may or may not be a deplorable state of policy, but, in our submission, it is no reason whatever to read down the plain, comprehensive and blanket words of section 30.

GUMMOW J:   What were the removal provisions relating to your client?

MR WALKER:   They are found, your Honours, numbered in the reprint No 3 numbers section 17.

KIRBY J:   Section 17 of what?

MR WALKER:   Of the Magistrates Act 1991 Reprint 3. It is in page 36 of the respondent’s first volume of legislation. It is in curious backwards terms, as your Honours see:

must not be removed from office unless the Supreme Court determines, on an application under section 15(5) or an appeal under section 16, that proper cause exists to remove the Magistrate.

There is proper cause under subsection (4), contained in section 15, which is perhaps misleadingly simply headed “Suspension”.

KIRBY J:   This is a much weaker removal provision than in New South Wales, where I think it is in the Constitution Act.

MR WALKER:   Yes.  There is no Part 9 ‑ ‑ ‑

KIRBY J:   It is not by Parliament.  It is just by the Supreme Court.

MR WALKER:   Yes.

KIRBY J:   Is that common in Australia, or is this something unique and peculiar to Queensland?

MR WALKER:   It is not possible to generalise about the position in Australia at the moment, your Honour.  One may predict that in 20 or 30 years time this will be seen as a transitional period.  The range – I am sorry, I cannot do it from memory any more, your Honours, but there is a range which still has a deal of what might be called “public service discipline elements”, there are special protections of the kind one sees in sections 15 and 16 of this Act, and then there is what might be called “quasi Act of Settlement” protection, as one sees in Part 9 of the New South Wales Constitution Act.

KIRBY J:   Well, it is a very strong provision in New South Wales, which was subsumed with the judiciary for the purpose of removal, I think, by a referendum provision, or that entrenched it.

MR WALKER:   Yes.  Now, under section 15(4), in answer to Justice Gummow, that appears to be an exhaustive list of what constitutes “proper cause”.  One sees that there are some very serious, but also some very generalised, categories of either character, quality or misconduct in that list.

KIRBY J:   Was that provision invoked after the conviction of the appellant?

MR WALKER:   Resignation after the Court of Appeal.  I think that is what your Honour is asking.

KIRBY J:   Yes, I just wanted to know what happened.  Was this an indictable offence?

MR WALKER:   Yes.  Section 15 and section 17 are not of automatic operation, your Honour appreciates.  They empower, they do not compel.

KIRBY J:   Yes.

MR WALKER:   Section 14 is the tenure provision, which collects the various ways in which tenure may cease.  One sees a number of ways, including removal under paragraph (c), and that leads then to the provisions of section 17 and section 15 by reference.

While there, and apropos some consequences of Justice Gummow’s question, may I remind your Honours, again using the numbering of Reprint 3, of the powers that then existed in a Chief Magistrate under section 10. Bearing in mind what your Honours have seen is included in the list of grounds for removal, one will see under section 10(8), pages 30 and 31 of the bundle, that there are a number of matters there cognate with grounds of removal.

KIRBY J:   These provisions have not been amended at any relevant time?

MR WALKER:   They have been removed.  They existed at the time of the events in question.

KIRBY J:   I see.  What is the state of the law now?  What is stated generally?

MR WALKER: We have given your Honours a reference in footnote 1 in our reply submissions to the statute law change after the events in question and it suffices to say that, apart from renumbering which makes it difficult for me simply to tell your Honours what provisions there are, as a matter of substance sections 10(4) and following were removed. But at the time in question where one comes to consider not only 119B but also, most importantly, 30 of the Code and 21A of the Magistrates Act, there was this power in the Chief Magistrate to reprimand upon the Chief Magistrate’s own satisfaction of a number of matters, some of which, as I say, are plainly, both textually and as a matter of their concept, cognate with grounds of eventual removal. 

One sees in subsection (9), again picking up the first ground of removal, that the Chief Magistrate formerly had, and had at the time of the events in question here, calling for the interpretation of the provisions in force then, the power to compel medical examination including for mental condition, the kind of eastern European approach to discipline that, unless it was accompanied by what might be called in administrative law terms a duty to act judicially, that is fairly, and most particularly a duty to act independently of pressure from the public and pressure from interested persons and pressure from the Executive, then one can see dire straits indeed for a judiciary in which this hierarchical position is given to a Chief Magistrate, from which it follows that these are provisions which at the relevant time plainly called in relation to the functions and powers administrative in quality – see in particular subsection (2)(d), which is the one in question in this case – called for a sturdy, robust, fearless independence in the Chief Magistrate of a kind supported by provisions such as section 30 as applied by section 21A.

Read in that fashion, there is no merit at all in the argument advanced by my learned friends in their paragraph 66 of their written submissions where they seek to persuade your Honours that the preferable interpretation, having acknowledged the literal availability of that for which we contend, is the one they contend for: removing functions or powers in the Magistrates Act from the class of functions and powers, independency of which is protected by the combination of 21A and 30.

KIRBY J:   It still has to be in the performance or exercise of an administrative function.

MR WALKER:   It does indeed.

KIRBY J:   Not in the performance or exercise of some private vendetta.

MR WALKER:   That is right. That is why we have drawn to attention in writing and we would emphasise this morning that the equivalency provision, which is the drafting technique not uniquely adopted by section 21A of the Magistrates Act, drives one, when one encounters section 30 of the Criminal Code, to seek to understand how its provisions, which are plainly adapted to and derived from a tradition of immunity for the exercise of judicial function, ought to be regarded as “the same” in relation to administrative functions and powers. 

Now, that is an exercise the importance and magnitude of which should not be understated because, traditionally, in limiting the immunity, not least in egregious cases which would otherwise shock the uninstructed, one of the principal tools of the common law was to distinguish between the judge’s judicial function and a judge’s ministerial or otherwise extra‑judicial conduct. But what Parliament required by section 21A is, either in the face of, notwithstanding or accepting that pre‑history of section 30 – what they required is that that distinction not only be abolished, but that something called “the same” protection and immunity should apply in relation to the performance or exercise of administrative functions or powers as applied in the case of judicial proceedings.

Now, in one sense that is an impossibility, because it is of the very essence of a judicial immunity that it applies only in relation to judicial conduct of the kind which calls for impartiality and all the constellation of other qualities supportive of impartiality which are peculiarly referable to the exercise of a judge’s core function, that is, judging; that which Chapter III is concerned with as opposed to the other matters which may or may not also be discharged by a Chapter III judge.  Now, having remarked, as it were ‑ ‑ ‑

KIRBY J:   I hope you are not embracing the rigid view of the distinction between what judges and tribunal members perform, because it is not a view that I would accept.

MR WALKER:   There is not a rigid view, in our respectful submission, at all.  That is, it is accepted that people who are not judges can do some things, which judges can also do, entirely properly and as judges.

KIRBY J:   And are often required to act in a judicial manner.

MR WALKER:   Quite. Now, what may or may not have been controversial, what may or may not have been invidious in particular cases – the ones that matter are the cases of egregious misconduct in a social sense – is swept away by section 21A. The equivalency operation in section 21A in particular, having found that section 30 speaks to the question of protection and immunity in a judicial proceeding in a Magistrates Court, as one does, requires that a meaning be given in this enforced state of exact similarity – as artificial and literally impossible as that must be – one must give content in that transferred position – if one likes, mutatis mutandis – to those closing words of section 30 to which I drew attention in one of the stages of my answer to Justice Kirby’s first question.

Now, those are the words:

although the act done is in excess of the officer’s judicial authority –

and then it continues to a second leg which does not concern us. It is those words, in our submission, that mean, in a way entirely consistent with the pre-existing case law gathered in the written submissions on judicial immunity, that though there is an exceeding of some requirement imposed by the law in the performance or exercise of a statutory function or power it may nonetheless be seen, for the purposes of section 21A, as being conduct in its performance or exercise, that is, one is not able to say of section 21A that it is available only for those who do not exceed authority, that is, it is available only for those who have truly, really or properly performed or exercised an administrative functional power.

It includes those performances or exercise which in administrative law terms may well have been vitiated to such an extent as not merely to be voidable but even to be void. One has seen in section 10 of the Magistrates Act that there were express provisions, for example, of a procedural fairness or decision improvement kind, that is, the consultation with magistrates and the taking into account personal circumstances.

GLEESON CJ:   Is subsection 10(8) of the Magistrates Act an example of an administrative functional power?

MR WALKER:   Your Honour, it may be an example of something neither administrative nor judicial, and one is tempted from current usage to offer perhaps disciplinary as an explanation of it.  We are bound to recognise that the text of none of the provisions before your Honours commands that one sees judicial and administrative as two categories which exhaust the whole.  The text does not drive you to that conclusion.

HAYNE J:   Are you then saying that the expression “administrative function or power conferred on the magistrate under an Act” does not cover those functions and powers which are not judicial, but are conferred by an Act?  There is a middle class, is there?

MR WALKER:   Your Honour, I am starting by stating that I cannot show your Honours in the texts of the provisions before this Court any explicit command to treat the relevant universe as comprising only two categories, judicial and administrative. I have to start there because I cannot find that in a text, and the example that the Chief Justice has brought up is one which, with respect, anyone familiar with recent developments, post-war developments in the judicial world, might be tempted to describe as disciplinary having qualities some in common with judicial functions, adjudication, punishment, and administrative, also qualities in relation to administrative if one sees, for example, the general task imposed by section 10(1):

ensuring the orderly and expeditious exercise of the jurisdiction and powers of Magistrates Courts.

HAYNE J:   Why does one begin the inquiry at that point? Why does one not begin the inquiry by noticing the provision of the Code, section 30, noticing section 21A and the equation that is sought to be drawn by that by reference to, compendiously, things done under an Act?

MR WALKER:   Yes.  I would not ‑ ‑ ‑

HAYNE J:   Why does one then conclude that there is a middle ground that is undealt with?

MR WALKER:   I do not invite that conclusion, but I am bound to recognise the very language of subsection (8) itself suggests the possibility, argumentatively at least, that there may be a category, which is neither judicial nor administrative, that is called disciplinary. Now, in fact my argument is as follows ‑ ‑ ‑

HAYNE J:   Yes.  Where the consequence is reprimand.

MR WALKER:   Yes. But I want to make it clear my argument finally is that that is not so, but my evasion - I fear that is what it is - is to note that that is not this case, that the power in question in this case under section 10(2)(d) is a power of nomination, that is appointment to positions which are peculiarly administrative. This Bench is familiar with formal, that is, official designations of certain judicial officers, federal judicial officers as, for example, judge administrators. Queensland has a similar expression, and there is, as your Honours well know, a large amount of frankly administrative work in relation to the running of a court, some of which is performed by judicial officers.

HAYNE J:   Are the powers given by sections 10(2)(a), (b) and (c) powers that ‑ ‑ ‑

MR WALKER:   They are unquestionably administrative. 

GLEESON CJ:   What about the duty imposed by section 10(10)?

MR WALKER:   That is also administrative.  That is how one administers; that is part of the administration of the reprimand provisions.

GLEESON CJ:   Would a reprimand  ‑ ‑ ‑

MR WALKER:   Now, your Honours, I have tried to give clear answers to the combination of inquiries from the Chief Justice and Justice Hayne about subsection (8).  May I just recap, lest I have not been clear, we recognise that is not possible simply from the text as a matter of literal English to require that judicial and administrative exhaust the categories.  We recognise that subsection (8) may, both as a matter of quality of the conduct in question, but also its terms, suggest a third kind of category, disciplinary, and the suggestion therefore might be that there might be other categories out there or, as Justice Hayne has raised for my consideration, does this mean there is some kind of vague other, apart from judicial and administrative. 

We finally take our position were it necessary for the determination of this case - and we submit it is not - that properly understood the whole network of provisions, section 21A, being part of the same statute, and plainly being enacted in the knowledge of section 30, will include provisions such as section 10(8), as it then stood, within the protection granted by section 21A, because of the self–evident public interest in that power being exercised free of the pressures which the Parliament has decided should not be applied to other administrative functions and powers.

GLEESON CJ:   Would a reprimand issued under section 10(8) be public? How would the ground of the reprimand be public?

MR WALKER:   I cannot tell your Honour.  I do not think there is any provision which takes the matter further past subsection (10).

GLEESON CJ:   I wondered about the Chief Magistrate’s exposure to ‑ ‑ ‑

MR WALKER:   To defamation.

GLEESON CJ:    ‑ ‑ ‑ proceedings in defamation.

MR WALKER:   That would either be dealt with by any applicable common law in relation to privileged occasion or by statutes in relation to it.

McHUGH J:   Well, the Criminal Code deals with defamation.

MR WALKER:   Yes.

McHUGH J:   Section 377, if I remember rightly.

MR WALKER: That raises the situation that that does need to be dealt with, yes, your Honour. But that casts no light, with respect, on the question of how one interprets the breadth of comprehension of the word “administrative” in section 21A.

HAYNE J:   Why not?  Why does it not suggest that 21A is there to pick up that sort of event, namely, the issue of a reprimand, and clothe it with the immunity that would obtain in a judicial proceeding?

MR WALKER: I say it does, of course. However, section 21A does far more than specific defamation provisions do.

HAYNE J:   I understand that.

MR WALKER:   Furthermore, it operates in the field of criminal responsibility, not merely civil liability.

KIRBY J:   It depends a bit on where one starts.  If you start from the presumption of ordinary liability, you reach perhaps one conclusion.  If you start from the presumption that immunities are exceptional and therefore you have got to fit yourself within it, then perhaps you reach a different end of the journey than you do otherwise.

MR WALKER:   No, we entirely accept one can start at different places, but in the interpretation of these provisions, which are public law – yes, they have devastating private consequence, depending on their outcome – to wit, a plight such as my client’s – but they are public law for public purposes and ‑ ‑ ‑

KIRBY J:   Not for shielding, on the face of things, private vendettas.

MR WALKER:   No, no.  Quite so.  And we can call in aid centuries of judicial pronouncement about judicial immunity to that same effect.  This is in the public interest, not for the shielding of private miscreance, but the public purpose is served by the incidental shielding of private miscreance.  It is accepted as being the price of the necessary public interest, namely, that it will not only be good judges who are protected by provisions such as 21A and 30, it is not only protection against captious or malicious, what might be called “false prosecutions”, it is all of them.  Now, that may have been a policy of the common law which, in another world, could have been determined differently, but it has not been.  That was the inheritance at the time of section 30 being enacted, and section 30’s texts simply do not permit any such distinguishing any more.

GLEESON CJ:   Is subsection (8) still there in section 10?

MR WALKER:   No, it is not.  It has gone.

GLEESON CJ:   It is a very clear example of what you said earlier, is it not, that is to say, of the transitional aspect?

MR WALKER:   Absolutely.  Very much so, your Honour, very much so.  The flavour of public service discipline in section 8 is unmistakable.  Its alien character to what might be called superior court Chief Justices and their functions cannot be overstated.  It is as removed as one can imagine from the relation of a Chief Justice with his or her puisnes.

KIRBY J:   That fits in with what the Privy Council said in Crane’s Case concerning the Chief Justice of one of the Caribbean States.

MR WALKER:   And there are Canadian cases or episodes to the same effect, your Honour.

KIRBY J:   Could I just ask you, section 21A was added after section 30.

MR WALKER:   Of course.

KIRBY J:   There is just a fleeting suggestion in Mr Jackson’s submissions that it is modelled on the telecommunications power and is therefore addressed – the suggestion that I took to the fact that magistrates have to do ‑ ‑ ‑

MR WALKER:   Lots of things.

KIRBY J:   - - - in the performance of quasi-judicial functions administrative-type things. Is that borne out by the second reading speech or by anything at the time that section 21A was inserted?

MR WALKER:   The legislative history unquestionably supports the proposition that section 21A was inserted with a view to ensuring that among the multifarious occasions when magistrates get to interfere, as it were, with private persons otherwise than judicially, they will obtain a measure of protection.

KIRBY J:   So that is dealing with private persons and that would fit in with the concept that section 30, which is the judicial power, is not to do with colleagues.

MR WALKER:   But the judicial power is exercised mercifully both against private persons and public entities, so section 30 speaks indifferently as to ‑ ‑ ‑

KIRBY J:   It is not in the running of a court, section 30 ‑ ‑ ‑

MR WALKER:   Section 30 is in the running of a court.

KIRBY J:   No, but it is not in dealing with colleagues, it is dealing with litigants. Now, the question is whether when section 21A was enacted it was intended to deal with litigants, as Mr Jackson’s submissions suggest, in, say, judicial officers giving telephone warrants and ‑ ‑ ‑

MR WALKER:   May I respectfully dissent from the proposition advanced by my learned friend and, with great respect, well illustrated by your Honour’s expression, that we are searching for something which in English can be called the intention of legislators.  We are looking at the meaning of the words they chose and they are words ‑ ‑ ‑

KIRBY J:   Yes, I am not much into intention, so you do not have to persuade me about that but what was said when 21A was introduced? 

MR WALKER:   The words chosen were unquestionably - one can see it from the legislative history or pre-history - chosen with a mind to those multifarious functions.  It is doubtful whether any single legislator had any concept of the long list that my friends have assembled, but that does not matter and says nothing about how to interpret the meaning of the words, and they chose a phrase not original to them, and my learned friend’s offering of a precedent has, with respect, some merit.  It can be seen that that Commonwealth precedent does not have any concept of “administrative” in it.  It is a provision of a kind that your Honours are well familiar with where members of the federal judiciary performing ministerial tasks are given immunity for the discharge of those functions and those functions are simply described by reference to the statutory provisions or the scheme in question without any characterising epithet “administrative” in the front of them, although they probably are all administrative if, for example, one were to consider any Chapter III problems.

GLEESON CJ:   Before 19A was introduced, what was it that protected magistrates in respect of committal proceedings?

MR WALKER: Section 21A, your Honour.

GLEESON CJ:   Before 21A was introduced, what was it that protected magistrates in relation to committal proceedings, which I would have thought is the most commonplace example of an administrative function?

MR WALKER:   I am sorry, your Honour has stumped me there.  I think the proper answer is common law in terms of the essential character of a committal proceeding as part of a criminal proceeding ‑ ‑ ‑

HAYNE J:   It would be done by an extended understanding, would it not, of 30, “exercise of the officer’s judicial functions” and you would need perhaps to stretch the word for the avoidance of doubt.

MR WALKER:   Yes, but your Honour appreciates that is why I would also call in aid common law, lest section 30 cannot be stretched.

GUMMOW J:   Yes, but in looking at section 30 you have to consider Murphy’s Case, do you not?

MR WALKER:   Yes.

GUMMOW J:   That favours you, does it not?  There was an argument that it was outside Chapter III to invest State courts with these committal functions, and the answer was no, it was not. 

MR WALKER:   Yes.

GUMMOW J:   Because it was sufficiently connected, which is what Justice Hayne is putting to you about section 30.

MR WALKER:   And my point about the integral connection, definitional identification of committal proceedings with true judicial proceedings.  In my submission, had that problem ever arisen, either section 30 would have stretched, to use Justice Hayne’s felicitous word, or the common law would have regarded it as unthinkable that in the “judicial”, using the word in the administrative law sense, discharge of an administrative function designed and uniquely adapted to the eventual judicial determination of criminal guilt, that the magistrate would not get the same protection as is available to judges at a trial ‑ ‑ ‑

KIRBY J:   I do not have a difficulty with that because that is, as it were, pushing or extending section 30 from a narrow view of what are judicial functions in dealing with litigants to a broader view of a magistrate dealing - now your point is it is expressed in very general terms and does not confine itself.

MR WALKER:   That is right.

KIRBY J:   But the argument to the contrary is, in the extension performed by 21A, it is to be taken as being analogous to the type of functions in 30, and that is why I am asking you was there anything ‑ ‑ ‑

MR WALKER:   That is not the argument against us, your Honour.  There is no analogy ‑ ‑ ‑

KIRBY J:  Well, it may not be, but I have to consider what it means, and was anything said when section 21A was introduced? I notice we have some explanatory notes but they do not seem to help in the interpretation as to what the purpose of introducing 21A was. Was that explained by the Minister?

MR WALKER:   No, only in terms which tell you that the purpose is to give the same protection or immunity as they have in judicial proceedings.

KIRBY J:   Do we have that second reading speech, or not?

MR WALKER:   Your Honours do not have that, but it has been looked at and there is nothing in it.

KIRBY J:   Well, if we can have it in due course.

MR WALKER:   When I say there is nothing in it, there is nothing that the parties seek to rely upon in accordance with the permissible methods by which such material can be before the Court and useful for your considerations.

McHUGH J:   But why do you take the view that judicial functions in section 30 is equivalent to judicial power?

MR WALKER:   I do not necessarily say that at all, your Honour, but the exercise of judicial power will always be a judicial function.

McHUGH J:   Well, exactly.  So why did not section 30 in any event always cover the case of a judicial officer acting judicially?  When he has any function to act judicially then whether it be an appeal against the refusal of license or a committal proceeding, why did not 30 cover that?

KIRBY J:   I thought you suggested that it ultimately did in the Queensland context, as distinct from say a federal statute.

MR WALKER:    I have tried to have the best of both worlds, your Honour. I have said maybe section 30 would stretch. Justice McHugh says it is no stretch and I have said that the common law in any event - may I say this, the case law and the purposes for which the characterisation of committals as administrative and not judicial that is still current law in this country is too well embedded, too important, and the contexts are more than just one context for one with, great respect, simply to ignore the point that the Chief Justice has raised. The fact is though, anybody walking into a decently conducted committal has no doubt that the person on the Bench is a judge acting judicially, to use lay language, that for the purposes of characterisation in the law, for a number of different purposes, and in this country, driven in particular by constitutional dictates, it is not judicial. That is why it would be dangerous for us, and I eschew simply saying that the word “judicial” in section 30 would, without stretching, include committals, and I apologise for not being able to have answered the Chief Justice’s question more categorically as to what was the protection before section 21A. My final answer is the common law, as it were, with fingers crossed.

HAYNE J:   But this debate seems then to be tending towards the possibility of some distinction being drawn between internal administration and external administration. 

MR WALKER:   Not so far as we are concerned.

HAYNE J:   I understand that, and I want to examine it with you a moment, (a) to (d) of section 10(2) no doubt had an internal administrative face.

MR WALKER:   With external effects directly.

HAYNE J:   And debates by disappointed litigants about whether a determination that X is to constitute the court at the particular place under 10(2)(a), that consequence for the outcome of the litigation in that court ‑ ‑ ‑

MR WALKER:   Or a magistrate’s spouse.

HAYNE J:   Yes.

MR WALKER:   So, in our submission, one does not have in‑house out‑house distinctions here, plainly, at all.  Subsection (2) talks about matters which are directly affecting other people, not just magistrates.  They do not just mean magistrates’ spouses; they also mean the people of the place where the court is to be constituted; for example, in relation to somebody whom they dislike, to take one example.  Practices and procedures of Magistrates Courts are most definitely not for the internal guidance of magistrates.  They are for the external direction of litigants and litigators.  Functions to be exercised by a particular magistrate are, of course, both a matter of internal division of labour, but also external effect; that is, the face and the nature of the work to be done by particular people, vis-a-vis the public.

Now, (d), of course, is peculiarly internal and classically administrative. In our submission, the question arises – one is tempted even after all these minutes to say it is a simply stated question – read purposively, including taking into account what Justice Kirby has raised in relation to all immunities but taking into account the public interest in question, why would one construe words in section 21A other than their perfectly ordinary and overtly general language would require? It is, in our submission, a signal omission in the written submissions for the respondent to identify anything in the text which would do so. The reasons advanced come first from section 7, which is the closest to a textual answer, and, second, to what is called, among other things, the underlying rationale.

Now, the underlying rationale point can be dealt with quickly; we have attended to it in our written reply. If the rationale be – and we accept it is – that there needs to be removal of fear or apprehension of good, bad or indifferent prosecutions in relation to certain forms of conduct by personages who are judicial officers, then it is impossible to see the important powers in section 10, particularly if one were to include subsection (8) – but subsection (2) alone will do – it is impossible to see that they are less deserving of that kind of protection, or that independence against pressure either from colleagues, trade unions, professional associations, governments or the press would be less important in relation to matters of that kind as they would be in relation to the many, many, many relatively routine, more or less bureaucratic, exercises found in the long, long list of statutes referred by my learned friends.

Now, that leaves only this question of whether section 7, as it was then numbered, works some textual magic so as to require those general words “administrative function or power conferred on the Magistrate under an Act” to render that less general than ordinary English would require.

When one goes to section 7, one sees that it probably has, from its wording, the evident purpose of abolishing any internal divisions of territorial jurisdiction.  It may or may not have other purposes, but one sees that it is a collection and declaratory provision in relation to what is called:

All the jurisdiction, powers and functions conferred on a Magistrate . . . by or under any law of the State.

Now the first thing to be said is that “jurisdiction, powers and functions”, particularly in a statute that uses the expression “function or power” in section 21A, but also so as not to impute complete redundancy to the draftsman, is an expression which will extend beyond the purely judicial. That is the first thing.

The second thing is that the expression “by or under any law of the State”, which will include both express and implied bestowals of authority, is an expression which is as compendious as one could get (a) of the law, but (b) – and that is all that matters for this case – of the enacted law of the State.  It is not possible for English to be more general and comprehensive in relation to the statute law of Queensland than by the expression “any law of the State”, leaving, we say, the simple inquiry permitting only one answer, is the Magistrates Act within the class of any law of the State?  The answer is, of course, “Yes, it is”, particularly as there was no word such as “other” in section 7 or no phrase such as “other than this Act”. 

Now, it is clear – the parties are in agreement on this, it is a matter of ordinary English and requires no subtlety of reading – that section 7 is, of course, contemplating bestowal of jurisdiction, powers and functions by provisions other than itself.  I have called it a collection and declaratory provision.  It assumes or speaks of jurisdiction, powers and functions conferred by some provision other than itself.  But each provision of an Act is a separate provision and though Acts are to be read as a whole, Acts are to be read collegiately, that is, amidst the setting of all the other Acts such as requires attention to doctrines such as implied repeal or “the general not detracting from the special”.  Accordingly, there is absolutely no reason why, if it happens that certain important functions or powers are contained in the Magistrates Act, they would be excluded from section 7 – that would be absurd – any more than they should be excluded from section 21A.

KIRBY J:   Is it the respondent’s argument, as you understand it, that section 7 when it refers to “any law of the State” does not include the Magistrates Act?

MR WALKER:   Yes, paragraph 65 has as its second sentence:

That Act – see s.7 –

That is, the Magistrates Act –

does not itself confer jurisdiction on magistrates.  Rather s.7 contemplates that the “jurisdiction, powers and functions” of a magistrate, will be conferred by or under another –

their emphasis –

law of the State.

KIRBY J:   I just find that hard to read section 7 that way, given that it says “any law of the State”.

MR WALKER:   That is our argument, your Honour. 

GLEESON CJ:   Are subsections (4) and (5) of section 10 still there?

MR WALKER:   Neither, your Honour.

McHUGH J:   No.

GLEESON CJ:   While they were there subsection (4) dealt with an extremely sensitive matter of judicial administration.

MR WALKER:   Yes.

GLEESON CJ:   What was the sanction for failure to comply with section 10(4)(b)?

MR WALKER:   It was judicial review. I will not call it a rash, but Queensland had an outbreak of judicial review of such decisions. Then there is also, as your Honours know, under Part 4 the judicial committee which is a merits review, on page 32 of your Honour’s bundle, section 10E, and these were relevantly reviewable. They:

must consider the merits . . . affirm it or substitute its own different determination.

KIRBY J:   Is the argument for excluding this Act that this Act itself confers its powers and functions of its own terms and therefore you do not need section 7 because it is in the Act itself?

MR WALKER:   We think so. We have anticipated that by our reference to redundancy in our written reply. It is an argument that should get short shrift. It is no more redundant for the provisions in relation to its own Act, that is the Act in which it finds itself, as it is for any other bestowal of jurisdiction, function or power. Section 7 in short simply does not provide any textual reason to drive an artificial reading down of section 21A. That is the end of its function in the argument in this Court, we submit.

HAYNE J:   The use of the expression “law of the State” may, it may not, find its origin in section 7 of the Acts Interpretation Act 1954 in which a reference to a law includes reference to the statutory instruments made under an Act and the distinction being drawn may be no more subtle than that.

MR WALKER:   Yes, but if there were, for example, regulations under the Magistrates Act it is entirely bewildering as to what purpose or sensible meaning is to be attained from excluding that.

HAYNE J:   I understand the consequence but ‑ ‑ ‑

MR WALKER:   Yes, your Honour, yes.  The law includes – when I have said “enacted law” I mean to include delegated legislation as well.

HAYNE J:   Well, the Acts Interpretation Act distinguishes between references to an Act and references to a law on that account.

MR WALKER:   Yes, it does.  That is why there is real moment in the omission of any phrase such as “other than this Act” in section 7, for example.  Your Honours, that concludes what I wanted to say about the so‑called immunity point.

May I conclude my address by then moving to matters in relation to section 119B. Your Honours will recall that I had intended to, as it were, provide this as the concrete situation in which one would come to consider the contested application of the immunity against the background of the concerns referred to by Justice Kirby. May I start by taking your Honours to the provisions which govern the circumstances obtaining at the end of the story, of which there is copious detail in the appeal book, and that is what was then the provisions, as then numbered, of Part 4 of the Magistrates Act.  Your Honours will find it commencing at page 31 of the bundle.

KIRBY J:   Could I ask, just so that I get it clear in my mind, perhaps by expressing it, that the matter that has been concerning me in the performance or exercise of administrative functional power, you answer that by saying the focus of 21A is on first identifying the administrative functional power and it is for, as you have put it, good and bad exercises and, therefore, once you have identified the power under an Act which falls into the classification of an administrative function, it would be destructive of the immunity that section 21A is designed to give that you have to then address yourself to whether or not as an anterior question there has been a good performance or a bad performance or an ill-judged performance ‑ ‑ ‑

MR WALKER:   Yes, or a vitiated performance.

KIRBY J:    ‑ ‑ ‑or a well judged, or a vicious or malicious performance or a proper performance.  It would just destroy the immunity, which is in any case expressed in general terms.

MR WALKER:   Yes, your Honour.  To borrow from the language of judicial immunity common law, the ‑ ‑ ‑

McHUGH J:   Well, the same problem would arise under section 30 because it speaks of “in the exercise of”.

MR WALKER:   And then – but the last words of section 30 mean that you have to understand that as meaning mis-exercise.

McHUGH J:   Yes.

MR WALKER:   And, after all, it is mis-exercise that is likely to attract otherwise criminal responsibility.

KIRBY J:   And there would be strong policy reasons for not giving the judicial immunity a narrow view, and I think ‑ ‑ ‑

MR WALKER:   Quite.  Authority to decide rather than the mode of decision.

KIRBY J:   Yes.  There is a very well expressed American decision, I think it is in the Supreme Court, that says “for the good health of the polity”.  It is in about 1811.  You have to tolerate the very occasional misuse of the judicial function to prevent all the judges being harassed because very occasionally it will be misused, that that would be destructive of the judicial immunity.

MR WALKER:   Yes, your Honour, we have drawn attention to Mr Justice Woodhouse’s ‑ ‑ ‑

KIRBY J:   I think it is in Raybos that I quoted that.  I remember it, I read it recently.  It is a very good way of explaining that society’s good health is better protected by tolerating occasional ill‑conceived or even private vendettas because, otherwise, unless the immunity is given, every judge is then exposed to being sued for judicial decisions, and, by this additional provision in Queensland, that is then analogised with administrative decisions under an Act.

MR WALKER:   Can I go further.  Take 119B, where “in retaliation because of” are words that need to be attended to not just by judges and juries, but by policemen and investigators.  But for this immunity, it would depend upon a judge or jury – a judge in a no case will strike out a jury, at the end of a case – to determine whether or not something had been “retaliation because of”; I am going to come to that.  The point of the immunity is that it would deter, deflect, prevent, with any shred of apparent propriety, a policeman knocking on a judge’s chambers, doors, and making inquiries about the state of mind, the animus with which certain expressions were heard to be uttered either during a hearing or appeared in written reasons. 

When one adds that police investigators are in the employ of the State, that is, they are part of the Executive, then the high importance of preventing at its source that kind of pressure is obvious.  This is not only what might be called mad or maverick, disappointed litigants.  It is also something that regulates the Executive.  Criminal responsibility is mostly initiated as a result by conduct of the Executive.

KIRBY J:   So the answer to my own question of concern with the Court of Appeal’s anxiety that they had after they had reviewed all the evidence and come to the conclusion that it was open to the jury to convict on the evidence is that if section 21A brings in section 30 immunity, then, even if you were to conclude that the appellant had acted ill‑advisedly or even bad temperedly or angrily or in a private dispute with the witness, for the better good of society, Parliament has provided, through 21A and 30, the protection of the performance of administrative functions by magistrates and this was one such function.

MR WALKER:   Yes.  Could I add one reference in answer to your Honour’s earlier question.  My learned friends put it in paragraph 63 of their written submissions.  It is a much cited passage that your Honours will be familiar with, Mr Justice Woodhouse in Nakhla v McCarthy [1978] 1 NZLR 291 at 294. Could I, as I say then, go to Part 4 of the Magistrates Act in Reprint 3, as it then was numbered, quickly to provide the background, as I say, the end game, which led up to the actions which in due course became the subject of the trial on indictment of my client.

It is important to note that under section 10A something called “A judicial committee . . . is established.”  That provides at first sight – and if we are successful, briefly only – support for one of the arguments by our learned friends in relation to what is called between the parties the witness point.  “A judicial committee . . . is established.”  However, may I take your Honours directly to section 10C.  As a committee, that is, as a group to whom something is committed, it comprises people who are nominated. 

One sees from subsection (2) that may or may not be specifically ad hoc.  It does not matter.  The members of a committee, notwithstanding that the committee is established, which may operate in, as it were, more than one panel at a time, are nominated.  The Chief Justice of the Supreme Court gets to nominate two positions and the Chief Judge of the District Court gets to nominate one.  When I say “nominate”, to nominate or to himself be, in the case of the Chief Justice or the Chief Judge.  It is worth perhaps noting that a question would arise as to whether that kind of nomination is an administrative functional power.  In our submission, it is.  That is, it would be protected but for the argument on the other side, which is that because this is in the Magistrates Act, there is no protection whatever for it.

When one comes to the powers of the committee on review, one sees that is entirely merits, “affirm it or substitute” so that it is a redoing.  Consistently with that, one sees under 10F that the procedure, notwithstanding that 10B calls it a review, is one where “The committee has full and unfettered discretion to determine its own procedure when conducting a review.”  That must be the members of the committee, for reasons I am about to come to.  That certainly, when one considers the nature of determining procedure, would expect that to be done by people who are members of the committee.  When you see who they are, then it is all the more obvious that that is what one would expect.

Under subsection (2) this full and unfettered discretion is then reinforced by doing away with what might otherwise have been implied requirements.  No rules of evidence, no need for any hearing oral or public, as it is called, no need to permit a party to be legally represented.  Furthermore, under subsection (3), “may conduct a review solely on the basis of the written materials it considers appropriate.”  The Chief Justice’s role includes under subsection (4) not only the nomination of section 10C, but also the issuing of directions for the procedure for a review.  That happened in this case with what might be called timetables for evidence.  I am bound to accept that that is what they look like, timetables for evidence.

However, the Chief Justice was not chairman of this committee, the Chief Justice was not a member of this committee, a matter which is perhaps obscured by some references in this respondent’s submissions.  As your Honours have seen, the importance of these matters arises because of an argument about when, if at all, Mr Gribbin became a witness within the meaning of section 119B.  I will come to that when I come to section 119B in just one moment.

KIRBY J:   These are two points, are there not?  One is your point about whether he was a “witness” and the other is whether there is proof that at any time he did become a witness if he was capable of being so.  Is that so?

MR WALKER:   Yes, I think one can express it as four points.  I am going to try to do them compendiously.  I do not wish to repeat what is in writing and I am going to do it by taking your Honours to 119B itself now.

KIRBY J:   The argument about whether he was a witness seems a pretty weak one.

MR WALKER:   Thank you, your Honour.

KIRBY J:   It is not like you to scrape the bottom of the barrel when you have some important points to press.

MR WALKER:   I am fearful, your Honour, that the alternative to ‑ ‑ ‑

KIRBY J:   That is just my reaction.

MR WALKER:   - - - scraping the bottom of the barrel is skimming the scum, but I am going to try and dip halfway if I can.

KIRBY J:   Do not assume that it is everyone’s view.  It just seems pretty weak to say that a person who gives an affidavit in an inquiry is not a witness when the inquiry can receive the evidence in writing.

MR WALKER:   Can I come directly to that point because there is not much to say.

KIRBY J:   There certainly is not.

MR WALKER:   What there is is as follows.

KIRBY J:   Have a try.

MR WALKER:   We have here a provision which has three characters plus the family extension of persons who are the object of protection by the law in the transcendent important interests of the administration of justice unpolluted by extraneous influences.  They are judicial officer, juror and witness.  In each case they are not merely people who have those appellations properly applied to them; they are people, of whom it can be said at the time the offence is said to have committed, who have lawfully – we do not need to linger on that word – done something in a certain character.  Paragraph (a), they have done it as a judicial officer.  Paragraph (b), they have done it as a juror or a witness, and then an important expression “in any judicial proceeding”.  And the word “done” is, as its grammar makes crystal clear, referring to something accomplished, completed, carried out - not feared, not predicted, not potential, not possible but accomplished, done.  Furthermore, done in a judicial proceeding where it is sensible to posit that they have the character in question, and again I can leave out the family extension because they are parasitical upon the player, judicial officer, juror or witness being identifiable. 

A judicial officer, unless it is his or her first case, may well comfortably be able to be said to be a judicial officer before, during and after a particular judicial proceeding.  However, it has to be something done by the judicial officer as a judicial officer and therefore one will be looking ultimately for it comprising part of or being in essential connection with a judicial proceeding.  That is how one deals with the temporal narrowness of section 119B in relation to judicial officers.  We are now no longer concerned with judicial officers who are dealt with separately in 119B(b).  We now move to paragraph (b) which is our case. 

There there are lumped together the case of juror and witness.  Unlike a judicial officer, jurors and witnesses are ad hoc appellations.  They are available only by reason of a part played in a particular judicial proceeding.  It is not possible sensibly to read those words as applying to those people who are potential jurors, but who may never become jurors, whether that is before they have received the sheriff’s summons or after they have received the summons, or after they have arrived at the court precinct, or after they have been herded into court at any point up until they become a juror.

KIRBY J:   Yes, but you cannot have your purposive construction in those where it suits you and not where it does not.

MR WALKER:   Yes, I can, with respect, your Honour.

KIRBY J:   The purpose here is to protect people from intimidation and that is going to be as true, in some respects more true, of a potential witness, frighten them off and they never get to the witness box.

MR WALKER:   Yes, and all the case law relied upon by my learned friends very properly, in the context of different offences, makes that point and particularly for my client, I would want no word of mine to be interpreted as detracting from the importance of criminal sanction against such conduct.  Of course, that is true, but we have section 140 of the Code for those cases.  Indeed, section 140 of the Code is expressed in terms which the common law cases, and some of them statutory cases, relied upon by our learned friends, turn upon. 

Of course, it is as bad for the course of justice to prevent somebody from becoming a witness as it is to ring them up and threaten them after they have been a witness.  Of course that is so.  However, section 119B is a specific provision about people who wear particular characters.  We are, all of us, potential witnesses, but we are not thereby witnesses within the meaning of 119B.  Some of us may or may not, by dint of our physical propinquity to or other involvement in events, be more realistically considered possible witnesses about certain matters, but equally, we have not become a witness until something has happened.  This is a criminal statute.

GUMMOW J:   I thought there was quite a deal of explanation at 119B in the legislative materials.

MR WALKER:   Your Honour, there is, and it ‑ ‑ ‑

GUMMOW J:   Do we have it?

MR WALKER:   You are right, but the mischief to which it was directed is not one which in any of that material includes anything even vaguely approaching what happened in this case.

GUMMOW J:   That is right, that is why I thought you might be relying on it.

MR WALKER:   Again, I have to be – Justice Kirby has uttered a stricture upon me.  I do not wish to blow hot and cold in my arguments of principle.  I accept that whatever meaning these words will be given, properly understood in a criminal statute, that is the meaning that they ought to bear, whether or not the material before the legislators expressly contemplated it.  Where one is talking about crimes against the administration of justice, one must, I suppose, start with the infinite variety of human perfidy which may try to retaliate against players. 

However, for the reasons that Justice Gummow has raised, one has to understand that the Crown Prosecutor in this very case, with respect to her, really got it right at the beginning of her jury address, page 420, when she put a finger on what section 119B is obviously adapted to attack.

This is the anecdote, she told the jury, between lines 20 and 30, of a person coming out of a witness box in young Jason the bank robber’s trial, and being punched by him in the face for something said in the witness box or for being a witness.  Well, yes, that is a classic example of the mischief to which section 119B was addressed.  My present point in interpreting section 119B, so as to answer Justice Kirby’s wounding words about the witness point, is this.  One has to have a line drawn between the amorphous potentiality of all of us to be witnesses and the intermediate courses by which one may swim rather closer to the ambit of a defence or prosecution’s ambition to call one and finally to the position where you can be said to be a witness.  We know that is true of somebody who was a juror or not.  You are not a juror until you are a juror, though there is this funnel effect by which your broad potentiality to be a juror becomes more and more likely to be realised as the process goes on.

We stress 119B as we interpret it is not an incomplete vindication of essential elements of the administration of justice because there is section 140 which, as the cases my learned friend relies upon show, is ideally adapted to threatening somebody who, for example, is walking near a courtroom by a threat from someone, a friend of the accused, who wishes to scare off somebody who might be a likely juror or witness.  Section 140 will be adapted for just that.

Section 119B draws lines by its reference to “judicial officer” as a judicial officer, and draws lines by the word “juror” and draws lines by the word “witness”, leaving what may be a difficulty for me in this argument.  Where ‑ ‑ ‑

HEYDON J:   What is the line where an affidavit is concerned - where it is filed, where it is read or where the witness enters the witness box and adopts the truth of it?

MR WALKER:   Quite.  Your Honour, that is what I was about to say.  The difficulty for me is where would I draw the line in a way that is useful to the outcome.  Can I attempt it as follows.  As the procedure your Honours saw in the provisions I drew to attention in the Magistrates Act shows, there was no prerequisite or requirement for material or information – I am using general words – to be used by the judicial committee to be admissible evidence, the rules of evidence, to be direct – that is, not hearsay – to be spoken or written, and certainly not to be on oath.  It may or may not be the parties are on common ground, as your Honours have seen in writing, concerning the possibility of an oath being administered in relation to whether this is a judicial proceeding.

Now, we start, therefore, with noting that it is, as it were, adventitious that an affidavit was the method by which Mr Gribbins’ information or views or both - and they are both - were conveyed to the judicial committee.  Your Honours have seen that we accept that from what one can reasonably infer this affidavit was used by the committee.  You do not find express references to it in their decision, but your Honours should proceed on the basis put forward by the parties before you that it was used by the committee.  That much is against us.

KIRBY J:   Can it be said that that is proof of the pudding, that in fact the affidavit was used and was obviously going to be used and was serious and was absolutely important to the decision of the committee and therefore, whatever theoretical doubts might exist with some witnesses, there was none in this case?

MR WALKER:   Your Honour, no.  The case is still - as Justice Heydon has required us to confront and what we want to confront – assuming there is a line, where would you draw it in the circumstances of this case?  Now, we have two arguments as your Honours have seen in writing.  The first is that Mr Gribbin never became a witness because nothing in the nature of testimony or evidence, as opposed to whatever information or material in whatever form they liked, was used by the judicial committee.  That there is no essential difference as to this particular event or as to the statutory setting between Mr Gribbin’s information and opinion being directly conveyed on oath by affidavit as it was, or being the subject of double hearsay in a letter to the judicial committee by a member of the Magistrates Association saying that he or she has canvassed opinion and that one of the persons has noted that Mr Gribbin had a particular view.

Now that is grist for the judicial committee’s mill, so we have the president of association – this is a hypothetical, of course – saying that one of his colleagues has told him that Mr Gribbin has a particular view about the transfer system.  Now, would that make Mr Gribbin a witness as opposed as a matter of ordinary English and the understanding of how information is used by a tribunal, somebody about whom evidence is being given?  Surely the latter not the former, and yet, functionally for the purposes of this judicial committee it is indistinguishable as a means of conveying his information and views to them from what was actually adopted, adventitiously as I say, that is by the affidavit.

HAYNE J:   What account does this argument take of two related questions, both rooted in the text of the Code, first, that judicial proceeding is relevantly defined in 119 as a proceeding “in which evidence may be taken on oath” and, second, what account does it take of the distinction drawn in provisions like 127 and 128 where you find references to persons “called or to be called as a witness”?

MR WALKER:   As to the latter they, in my submission, show the need for such expressions in order to have the class of proleptic witness.

HAYNE J:   And as to the former?

MR WALKER:   As to the former, I am bound to say that that is probably against us, that is, the ‑ ‑ ‑

HAYNE J:   What answer do you make to it?

MR WALKER:   The answer is that the definition is one which distinguishes between some proceedings and others by the degree of solemnity and sanction which may become available for some but not for others.

HAYNE J:   But 119B(b) is engaged only  ‑ ‑ ‑

MR WALKER:   If it is a judicial proceeding.

HAYNE J:   If it is a judicial proceeding.

MR WALKER:   Now, that is my point.  Your Honour, the definition in section 119 seems to say that it is an important characteristic that evidence may be taken on oath.  In fact, I have put it badly.  It does say that.  It is not only important, it is definitional.  But that is only to distinguish between some proceedings and others by a technique or tool, that is, evidence may be taken on oath, which happens, normally to indicate the relative solemnity, seriousness and sanction of the proceedings.

GUMMOW J:   Where do we find this affidavit?

MR WALKER:   Your Honour is talking about Mr Gribbin’s affidavit starting at 303, I take it.

GUMMOW J:   What legislation provided for the swearing of affidavits?  In New South Wales one has a Statutory Declarations Act.

MR WALKER:   Yes.

GUMMOW J:   People swear statutory declarations about all sorts of things.  They only swear affidavits if there is some court rules providing for affidavits.  Where did it spring out of nowhere here?

MR WALKER:   It does not seem to spring out of the Oaths Act, where we made some inquiry. One finds that in Part 4 of the Oaths Act 1867, which deals with statutory declarations.

GUMMOW J:   Yes.  It does not deal with affidavits, does it?

MR WALKER:   No.  There is indirect evidence.  I will have my learned junior turn it up.

GUMMOW J:   Court rules deal with affidavits.  It all comes out of the equity jurisdiction.

MR WALKER:   Yes, I remember I drew attention to the Chief Justice making directions for procedure.  I will have it turned up, but there is either, I think there is indirect evidence that the Chief Justice made a direction for the filing of what is called affidavits.  May I check that.

GUMMOW J:   Thank you.

MR WALKER:   But that is, I think, the only answer I can give to your Honour about why it is an affidavit as opposed to a statutory ‑ ‑ ‑

GUMMOW J:   Well, that may be an exercise of the fairly general power of this committee, would it not, to regulate its procedure?

MR WALKER:   That is right, and the specific power of the Chief Justice to give directions for the procedure, for the committee, to which I drew attention earlier.

GUMMOW J:   Yes.

MR WALKER:   Now, I think that is the best I can do, your Honour, otherwise it would appear to be, as it were, an inappropriately grandiose title for something on oath, which would be otherwise a statutory declaration under the Oaths Act.

GUMMOW J:   Well, it is not a pointless distinction, because as Justice Heydon was putting to you in his question affidavits carry all sorts of weight, legal baggage ‑ ‑ ‑

MR WALKER:   Yes.

KIRBY J:   The best you have done so far is to suggest there is some criterion of solemnity.

MR WALKER:   No, that is in answer to Justice Hayne’s question who, with respect, confronts me with the fact that the essential concept of judicial proceeding is defined by the capacity to require evidence to be taken on oath or to receive evidence on oath, and I accept, as I am bound to, that that rather suggests that is an important matter.

KIRBY J:   It certainly does.

MR WALKER:   First of all, it refers to evidence being taken.  Now, that has to be understood, if this is to apply at all, in the context of the procedure of this judicial committee ‑ ‑ ‑

KIRBY J:   Yes, that is right.

MR WALKER:    ‑ ‑ ‑ where they know that they do not have to take evidence in any way at all; they may.  After all, it is the capacity that is looked at by the definition in section 119, not the actual fact in any particular case, and there is no doubt of the capacity of a judicial committee, looking at a reviewable determination by a Chief Magistrate, for evidence to be taken on oath in the formal sense of those words.  It was not done so in this case, which leaves open the question, did he ever become a witness or not?  In our submission, whether it is called an affidavit or a statutory declaration, but particularly given it was ‑ ‑ ‑

GUMMOW J:   The real question is what this word “witness” means.

MR WALKER:   Yes, and I have tried to distinguish between the person whose information and advice is conveyed to the decision‑maker, because that could be done by being talked about rather than talking ‑ ‑ ‑

GUMMOW J:   I can understand a deponent of an affidavit becoming a witness when the affidavit is read ‑ ‑ ‑

MR WALKER:   Is read, yes.  Now, if this were a familiar ‑ ‑ ‑

GUMMOW J:   But not otherwise.

MR WALKER:   Quite. 

GUMMOW J:   Maybe there is a question there. 

MR WALKER:   If this were a familiar judicial proceeding, then, in our submission, a person whose affidavit – let us take it one by one – is not filed nor served is not sensibly to be called a witness.  Interference with that person’s willingness for those further steps to be taken in relation to their affidavit is a very serious attack on the course of justice, dealt with by section 140, that they did not become a witness.  There is a reason for this in section 119B also, because of the word “retaliation” for something done in a judicial proceeding.  An affidavit may be prepared in advance of a judicial proceeding and may be prepared notwithstanding none is ever instituted. 

KIRBY J:   Now, this point was never taken at the trial or in the Court of Appeal ‑ ‑ ‑

MR WALKER:   No, we acknowledge all of that, your Honour, but they are, in our submission, fundamental points of criminal responsibility.

KIRBY J:   Well, one of the problems is that if it had been taken at the trial, maybe the reception of the evidence would have been proved by the Crown.

MR WALKER:   These are matters of argument, your Honour.  The reception of the evidence was proved in terms of its receipt by the Chief Justice ‑ ‑ ‑

KIRBY J:   We have it at 303, we have the affidavit as at 303.  Was there ever a decision of the judicial committee? 

MR WALKER:   Yes.

KIRBY J:   Is that in evidence?

MR WALKER:   Yes.  Your Honours will find that ‑ ‑ ‑

KIRBY J:   The proceedings are not ‑ ‑ ‑

MR WALKER:    ‑ ‑ ‑ starting at page 328 and going to page 331.

KIRBY J:   The actual course of the proceedings, a transcript of the proceedings ‑ ‑ ‑

MR WALKER:   There was nothing to be transcribed.  If one goes to 328 one sees in paragraph 1 just above line 25:

We have received comprehensive affidavit material from both parties, and substantial written submissions.  It has been possible to conduct the review on the papers without the need for additional oral hearing –

KIRBY J:   But is that not fatal then?  That it does mean that Magistrate Gribbin’s affidavit was in fact received?

MR WALKER:   I conceded that.  It is not fatal, no.  Page 341, paragraph 15, line 30: 

It is clear that some Magistrates are critical of the Chief Magistrate for not taking a sufficiently collegial approach to these issues. 

Inferentially only, but pretty securely, that would appear to include Mr Gribbin.  Now, that is the material I was referring to earlier for the basis of my concession that this ‑ ‑ ‑

KIRBY J:   So given that within their power they acted on written material, why cannot one then say for the purpose – if the criterion is, was it filed, was it read, was it received, that it was filed, it was taken as read and it was received and taken into account in the decision?

MR WALKER:   Nothing in the nature of testimony which would distinguish this from the example I gave earlier of double hearsay conveyance of the man’s information and views to the committee appears from these circumstances.  That arises from the nature of the procedure.  The witness point, as your Honours appreciate – we have two arguments.  One, he never became a witness, and that is because there was never an occasion when there was a deployment of this material to render him witness as opposed to other source of information or view, and, second, as an alternative, that though he became a witness when, as we concede, his affidavit was read and used – I mean not read by counsel, I mean read by the members of the committee – and used by being part of the material upon which they based their information, the only evidence at trial was that that must have occurred by a date well and truly after the offending email was sent by my client.

HEYDON J:   Has not Mr Jackson gone into a detailed factual analysis in which he tries to endeavour to prove the contrary ‑ ‑ ‑

MR WALKER:   He does, and we ‑ ‑ ‑

HEYDON J:    ‑ ‑ ‑ which is not rebutted, is it, by your ‑ ‑ ‑

MR WALKER:   Yes, it is.  Your Honour will find our answer to that in paragraphs 13 and following of our reply.  It may be that the parties were at cross‑purposes, your Honour.  None of the evidence referred to in my learned friend’s written submissions shows when the three judges became members of this committee.  None of the evidence showed when they first had ‑ that is, the earliest time – Mr Gribbin’s affidavit.  The material rather shows, using the misnomer Chief Justice, chairman of the committee – he was never chairman of the committee – shows that the Chief Justice made directions and acknowledged receipt of Mr Gribbin’s affidavit well and truly before the email.

KIRBY J:   Yes, but in what you call the offending email, at page 311, your client says: 

Could you also explain to me why you sought fit to supply an affidavit in the matter of Ms Thacker’s Review of my decision ‑ ‑ ‑

MR WALKER:   Your Honour, there is no contest that it was given to the Chief Justice for the judicial committee well and truly before the email.

KIRBY J:   The inference is that it was the trigger for the email, which is said to contain the threat.

MR WALKER:   Your Honour, that is the retaliation point to which I will come in a moment.  We are just talking now about the witness point, my second alternative argument, which is a timing and evidence question.  The question is “Was he a witness at the time of the email?”, and my first point is that we do not even know that there was the judicial committee with its members at that time.  We certainly do not know that they had Mr Gribbin’s affidavit.  So that if reading and using – that is my argument – if reading and using the affidavit by the members of the committee rendered Mr Gribbin a witness – and we say that would be the earliest point at which he would be rendered a witness within the meaning of 119B – then there was a complete failure by the Crown to prove that that had happened before the email.

That is important because of what I said in opening on 119B.  It has to be retaliation, it has to be because of something done.  So the temporal sequence must be first you are a witness and do something and, second, there is something called retaliation because of it.  If the email preceded him becoming a witness or his affidavit being read and used in the sense I have put, then the temporal sequence is contrary to the application of 119B though it may have been grist for the mill under section 140.  That is a different issue.  That completes what I wanted to say about the witness point. 

In relation to retaliation, it is clear if one goes to again the way in which the learned Crown put it in addressing the jury from language such as that at 424, line 34, that the issue by the time it got to the jury was about what is called a “payback” or “get-square” and the notion of punishment is referred to under what we submit is the inadmissible rubric of motive.  Now, there was really no call for any language other than “retaliation” and appropriate definition of that word, if as a word it needed definition at all, but we do not make complaint about ‑ ‑ ‑

KIRBY J:   The Court of Appeal quoted apparently something said by your client about “punching Basil’s lights out”.  That sounds like retaliation.  This is at 483.

MR WALKER:   Your Honour, that emerges in a somewhat different context and I am going to deal with that in relation to so-called motive.  In relation to retaliation, in our submission, though it be an ugly word unquestionably, it is of course a word which is found in a provision which by recourse to its crucial phrase “without reasonable cause” seems to contemplate the even uglier possibility of retaliation with reasonable cause, or retaliation not without reasonable cause.  That, in our submission, is a clue to the importance in this case of disentangling motive properly so‑called which is not permitted under section 119B in light of section 23 of the Code to play any part in any of the determinations of criminal responsibility from what might be called the objective justification.  That is, the without reasonable cause upon which the Crown bore the onus, even though one had a sequence of conduct already observed by Justice Kirby today which might otherwise answer the English description “retaliation”.  Now, it may be that “retaliation because of” – those three words – are a little redundant.  However, they serve this valuable purpose that one must be able to ascribe to the putative retaliation a cause that is a ground – paragraph (a) and paragraph (b).

We have put the argument that one cannot do that where there are avowedly mixed motives or, to put it in an appellate context, where the jury could not have safely come to any other conclusion than mixed motives, and your Honours have seen the material - I do not need to elaborate it in address - which, in our submission, made it clear always that there were grounds other than what I will call the affidavit for the disenchantment which my client had come to entertain in relation to Mr Gribbin as one of her co-ordinating magistrates.

KIRBY J:   It just happened that it was immediately after receipt of the affidavit that she ‑ ‑ ‑

MR WALKER:   No, no.  Of course it did not, your Honour.  Her email speaks for itself and ‑ ‑ ‑

KIRBY J:   Yes, but there is another apparently in evidence which was the original email prepared by your client.

MR WALKER:   It is not in evidence, but there is evidence about it.

KIRBY J:   Yes.

MR WALKER:   And your Honour’s point, of which I can anticipate, is of course, with respect, right.  She went to Mr Searles with a proposal for what I will call summary removal, and he said, “No, you shouldn’t do that.  You should ask him to show cause.”  Now, that of course is why ‑ ‑ ‑

KIRBY J:   That rather suggests, does it not, a rush of the blood to the head and a distinct determination to dismiss him from this office which carried ‑ ‑ ‑

MR WALKER:   It shows a stepping back from the ‑ ‑ ‑

KIRBY J:    ‑ ‑ ‑job satisfaction and extra money.

MR WALKER:   It shows rather a cooling off, your Honour.

KIRBY J:   Cooling off?

MR WALKER:   Yes.  That email was not sent.  That draft was not sent.  There was mature reflection upon legal advice.

KIRBY J:   The point made by the Court of Appeal is that it provided evidence that was available to the jury on the basis of which the jury could conclude that it was retaliation.

MR WALKER:   I understand, your Honour.  I understand.

KIRBY J:   It is pretty devastating stuff.

MR WALKER:   On retaliation, I trust your Honours appreciate, we say that there were a number of inquiries even after the jury can tick the retaliation box, and one of them is the one - I am just about to finish what I wanted to say of it, that is whether it is because of those matters.  Now, in our submission, where there were mixed motives, for the reasons we have put in writing, that could not have been ticked.  Can I come to the next one which is the one that we wish to finish with and which is the most important.

The Crown had to exclude “reasonable cause”, and in the way in which it appears in the Court of Appeal reasons, and indeed in the argument against us in this Court, it is clear that on that inquiry as to whether the Crown had excluded reasonable cause, what has been variously called the motive, or motivations, of my client, including what might be called emotional state, has been heavily canvassed.

In our submission, again a point not taken below but fundamentally important as a matter of justice in such a case, no doubt this being I think the first prosecution under a very new provision, there was insufficient attention paid below to the difference between ascertaining whether something was in retaliation because of something done and going on to conclude whether or not the Crown had excluded reasonable cause.  As I have said, the phrase “without reasonable cause” as one of the elements to be made good by the Crown contemplates, as startling as this would appear, something in the nature of retaliation because of something done but for reasonable cause. 

When one thinks about what might be revealed, for example, in a colleague’s evidence if a colleague becomes a witness, one can rapidly understand that it would be very unsafe to say there could never be reasonable cause to do what somebody might regard as a retaliation such as removing someone as co‑ordinating magistrate whose evidence showed that they were intent on, for example, favouring a go‑slow program at a particular court.  That would be, whatever else might be said about it, in industrial terms the antithesis, one would have thought, of the relationship which should obtain between a Chief Magistrate and the co‑ordinating magistrate.  Importantly – and this is my last point – what an extraordinary matter to leave to jury determination according to their individual and joint determination of what they would have done in that position or whether they would have taken offence as my client took offence or whether they would have regarded things as disloyal, to use a word much bandied about.

McHUGH J:   Subject to hearing Mr Jackson, it seems to me that the correct issues were never put to the jury in any shape or form.  I would have thought that the issue for the jury on “reasonable excuse” was this:  did she in fact not have confidence in his leadership abilities?  If that was the case that she did not have, was that a reasonable excuse for calling on him to show cause to remove?  Those issues were never put to the jury.

MR WALKER:   Not crisply.  I think there is material in the book that covers that plus much else but not put.  Can I take your Honours to the Crown address, for example, and then to the summing up.

McHUGH J:   The summing up deals with it at 440 and 448, I think.

MR WALKER:   Yes.  Could I start with the Crown address at 432.  One sees first starting at line 13 a passage where the learned Crown submits to the jury notions of an abuse of power by limited availability of grounds for removal in which, for example, lack of confidence or destroyed rapport or the antithesis of co‑operation or co‑ordination does not appear.  That may or may not be a view that may or may not have appealed to a juror but, in our respectful submission, was very much apt to mislead because “without reasonable cause” is either objective in a criminal statute or else very serious criminal sanctions, imprisonment, suffered by my client will depend upon whether a juror who has never organised a Magistrates Court in his or her life happens to approve of what somebody who has been doing it reaches as a conclusion concerning the assistance that should be got from a co‑ordinating magistrate.

KIRBY J:   Yes, but was not the issue tendered to the jury.  Look, this was merely, simply the decision that this man was not suitable to hold this additional office, and the issue put by the Crown is, as said at 431, that is not the correct interpretation.  The correct interpretation - it was done as payback.  It was done to get back at the witness for making the affidavit.

MR WALKER:   Your Honour, that is my point.  Retaliation is not enough.  It has to be ‑ ‑ ‑

McHUGH J:   The section assumes there is retaliation.

MR WALKER:   Yes, and it has this contemplated reasonable cause for ‑ ‑ ‑

McHUGH J:   But it may have reasonable cause.

MR WALKER:   Yes.

KIRBY J:   Yes, but the point is that the Crown was saying how can that be reasonable cause when it is an abuse of power.

MR WALKER:   The Crown was quiet, and that, in my submission, was putting to the jury a matter which abolishes, debauches the content of the expression “without reasonable cause”.

KIRBY J:   I do not think it does.  It requires the jury to pass on a factual assessment of whether, given the necessity to consider reasonable cause, this was within the statute or was simply a misuse of power to put his lights out.

MR WALKER:   Yes, your Honour.  That is to mix, with respect, matters from quite different contexts.  Can I come to 433.

KIRBY J:   I do not know what the context was.  I have not read it all, but the Court of Appeal read it all, and they were not impressed.

MR WALKER:   Line 19, at 433, those two paragraphs down to line 40 have the Crown inviting the jury to characterise for themselves whether or not Mr Gribbin’s affidavit fell fairly to be seen as having conveyed harsh and unnecessary criticism of Ms Fingleton as Chief Magistrate, in short, inviting the jury simply to substitute their personal views of a matter, and in our submission, thereby eviscerating the essential safeguard in an otherwise quite difficult criminal provision, namely that it has to be without reasonable cause.

When one looks at the generality of injury or detriment referred to in section 119B, and one understands what retaliation means, then it can be fairly clearly seen that defamation committed upon a judge, juror or witness by public outrage at something that has happened, that is, been lawfully done by one or other of them, will clearly – see the law of defamation – be the infliction of an injury or detriment, and suddenly, we have an inquiry as to whether that is “without reasonable cause”.  Can one really construe that phrase as inviting the jury to say, “That is what I think.  I would not have done that.”  In short, it is whether or not you agreed with the criticism of the judge will suffice and stand for a jury determination, that the criticism of the judge has been with or without reasonable cause.  Now, when it came to the ‑ ‑ ‑

KIRBY J:   But it has to be reasonable cause.  It is just not saying, “Well, I did it for this purpose”, and then you have to classify or characterise.

MR WALKER:   But the defence has no onus.

KIRBY J:   No.

MR WALKER:   Can I come to the summing up.  At page 443, lines 35 and following, his Honour does say:

In the end, the rights and wrongs of the controversy concerning transfers are not for you to determine.

That was correct.  Then at page 444, the state of mind matter was unfortunately put in a compendious way, so as to comprehend both section 119B and section 140.  Your Honours will see that at lines 8 to 12.

KIRBY J:   Can I just ask you to pause for a moment.  You and Mr Jackson appear to agree that “without reasonable cause” is judged by an objective standard.  Is that the correct way to approach such a provision in a criminal statute ‑ ‑ ‑

MR WALKER:   Yes.

KIRBY J:    ‑ ‑ ‑which is inquiring not just into the acts but into the mind of the accused?

MR WALKER:   Well, motive, as we put, was irrelevant.  Now, the material which is relied upon quite frankly by the respondent to prove motive unquestionably would have been and was admissible for something else, the retaliation, the “because of”.  So we are not trying to keep information from the Court at all, but motive should never have appeared.  Section 23 expurgates it from the inquiry, but the whole of this was, in our submission ‑ ‑ ‑

KIRBY J:   That is not quite the question I am asking.  The question I am asking is whether or not as seems to be common ground, “without reasonable cause” is an objective question.

MR WALKER:   Objective.

KIRBY J:   In a sense, your client having consulted a solicitor, one could see a very powerful argument that she had reasonable cause because she had gone and consulted somebody, and the Crown Law is an experienced solicitor who said “Yes, you can send this letter”.

MR WALKER:   Quite.  Your Honours, is what a co‑ordinating magistrate says in proceedings of this kind some kind of Savoy where they are immune from administrative response to what is revealed in their evidence?  What if it is revealed that the man takes more time off than he should?  What if it is revealed that there is a degree of favouritism in the allocation of tasks?  Call it retaliation - response might be another word - but reasonable cause, bucket‑loads of it.  In our submission, the simply equation or elision or conflation of retaliation with a lack of reasonable cause was on the substance or merits of this conviction a fatal flaw.

HEYDON J:   Do you say that you could rely on the reasonable cause to fence in if that reasonable cause was not present in the mind of the defendant?

MR WALKER:   Yes.

HEYDON J:   Yes.  But does that have any factual toehold in this case?

MR WALKER:   Oh, yes.  I do not think that is disputed that the email itself bespeaks concerns which it really is quite unrealistic to suggest the jury regarded as utterly and every one of them insincere.

HEYDON J:   The judge told the jury they did not have to decide the rights and wrongs, though.

MR WALKER:   No.  Could I come, however, to ‑ ‑ ‑

HEYDON J:   So that is an error on this argument upon this aspect ‑ ‑ ‑

MR WALKER:   No.  I have drawn it to attention because we would say that was right.

McHUGH J:   What puzzles me about the matter is that the email itself purports to describe what the reasonable cause is for – and what is found to be the retaliation.

MR WALKER:   Yes.

McHUGH J:   Now, I would have thought that was what would have to be investigated.  Did she in fact not have confidence?  If the Crown negated that, that was the end of the matter, but ‑ ‑ ‑

MR WALKER:   Could the jury possibly have come to the conclusion that she did have confidence, that she thought he was the right person to stay in the job?  Of course not.  It was not posed as ‑ ‑ ‑

McHUGH J:   Well, unless the jury was satisfied beyond reasonable doubt that the Crown had proved that she was not telling the truth when she said she did not have confidence ‑ ‑ ‑

MR WALKER:   That should have been the end of it, because the Crown ‑ ‑ ‑

McHUGH J:   But then the next question is, was lack of confidence in his abilities sufficient reasonable cause for calling on ‑ ‑ ‑

MR WALKER:   Can I then come to 448, where there is, with respect, a bit of a curate’s egg.  Can I come directly to the good bit.  At line 9 to 27 you have this passage – I will read it by skipping:

evidence of a difficulty presented by an apparent inability . . . to work harmoniously and constructively . . . That difficulty could constitute reasonable cause . . . to call upon . . . to show cause . . . why . . . should remain.

McHUGH J:   That does not seem to me to be the correct issue.  What was given as the cause was that she did not have confidence in him.

MR WALKER:   Your Honour, I just want to offer this in support of the judge.  That general expression “evidence of a difficulty” almost certainly incorporates what your Honour has, with respect, more precisely described.  However, having instructed them that that could constitute “reasonable cause”, there is nothing about whether or not that difficulty was genuinely perceived by her to exist.  It is fair to say that the way the factual issues were joined in this trial, no one could have doubted that she did perceive such a difficulty to exist.  Then the judge went on:

But whether such a difficulty would be a reasonable cause . . . is for you to determine.

Now, depending upon what had preceded that, that might have been unexceptionable, but the omissions I have already noted render it, in our submission, an invitation to subjective or idiosyncratic agreement or disagreement with what the Chief Magistrate had done, rather than the application of the objective standard, which would have been emphasised to the jury by phrases such as “What a reasonable person, in the position of the Chief Magistrate, may have regarded as good cause or an appropriate reason, ladies and gentlemen, being careful not simply to ask, ‘Well, what would I have done?’, to contemplate that reasonable minds may differ”.  Then at the end of that ‑ ‑ ‑

KIRBY J:   Yes, but there was a battle, was there not, between whether the cause was her assessment of Mr Gribbin or whether it was that she wanted to get back at him because he put the affidavit in?  I mean, if it was the latter it was not a reasonable cause and that was a jury question.

MR WALKER:   Your Honour, so called retaliation – that is why ‑ ‑ ‑

KIRBY J:   It is not only retaliation; it is a reasonable cause question.

MR WALKER:   That is the offence though.  It is “retaliation because of” and I have already put my arguments about that.  Now, the end of that paragraph on page 448 to which I have gone between lines 10 and 16, there is, as it were, a wobble in relation to onus which is almost certainly corrected.  Remember he said that such a cause must be reasonable.  Left on its own that would have been a dangerous invitation to see an onus on the accused but please also remember that, and then a phrase that may leave the wobble still operating, “in the end, the Crown must prove absence of reasonable cause”, as if there is, as it were, a middle game.  Now, in our submission ‑ ‑ ‑

KIRBY J:   What page is that again, please?

MR WALKER:   Page 448.

HAYNE J:   Does the judge in the direction deal specifically with the arguments advanced by counsel for the defendant at pages 417 and following on the issue of reasonable cause?

MR WALKER:   I think the answer is yes. 

HAYNE J:   Counsel begins that aspect of it at line 15 and following ‑ ‑ ‑

MR WALKER:   Quite, and, as it were, says that even if retaliation, even if the so-called payback or get-even and the detriment, did she have ‑ ‑ ‑

HAYNE J:   I have in mind particularly line written 45, typed 50 on 417, “good working relationship” et cetera and that line of argument.  Do we find that dealt with in the charge?

MR WALKER:   I think the answer is yes.  It starts at the top of 461.  The element, his Honour says:

of the absence of reasonable cause.  Mr Hanson made some detailed submissions . . . done in the context of there being a squabble –

And then of the particular phrase that your Honour Justice Hayne has drawn to attention, line 19:

necessary for the proper functioning of the Courts that there be a good working relationship –

et cetera.  There is that plus what your Honours have already seen at 448, plus what your Honours will see at 451, line 20 and following, about the functions and powers of the Chief Magistrate.

HAYNE J:   As issue was joined at trial, as revealed in the addresses, what is deficient in what the trial judge told the jury on this subject of reasonable cause?

MR WALKER:   Simply that they were not instructed that the standard to be applied was that of a reasonable person in the position of the Chief Magistrate, as opposed to whether they, invited as they were by the Crown, simply agreed or disagreed themselves with the way she handled

the matter; an emphasis, in short, on what is called, not always helpfully, the objective nature of that matter.  In our submission, that is very important in a provision such as section 119B, which threatens otherwise to criminalise, at what might be called the idiosyncratic assessment of a collection of jurors, conduct which many people may regard as, for example, the only responsible reaction to what is revealed in somebody’s evidence.  Of course, 119B has to be construed in such a way as to favour, rather than threaten, liberty.  May it please your Honours.

KIRBY J:   You have not argued the failure of the prosecutor to call Mr Searles.

MR WALKER:   I rely upon our written submissions.

KIRBY J:   You still press that point, do you?

MR WALKER:   Yes.

KIRBY J:   Seems to fly in the face of recent cases where the Court has emphasised the fact that that is within the Executive Government and the prosecution, not the court, except in extreme circumstances.  Mr Searles’ evidence did go before the jury.

MR WALKER:   Your Honours, I rely on our written submission.

GLEESON CJ:   Thank you Mr Walker.  Yes Mr Jackson.

MR JACKSON:   Your Honours, I propose to deal first with the question of section 21A of the Magistrates Act and after that I will go to the question of witness and the other issues that are dealt with.  May I say, however, that in relation to the very significant number of issues, this is a case where the aspects, including the witness aspect, were actually conceded at the trial.  In relation to the question of a witness, in particular, it was made absolutely clear that this was not an issue.

This was a case, your Honours, where there had been a trial and a disagreement before the same judge, the same counsel, immediately before this trial had commenced.  At the pre‑trial hearing and at the start of the trial it was apparent what the issues were.  There were three issues.  When those issues were dealt with by counsel and the judge there was no request for any redirections and your Honours will see from the observations made in the Court of Appeal that only one ground was taken.  I will take your Honours to that in just a moment.

KIRBY J:   I saw that you said that there had been an earlier trial.  Are we permitted to know how far it had gone?

MR JACKSON:   It had been germane, your Honour, to the question of retrial – of a further trial if the appeal succeeds on issue where that would become relevant.

KIRBY J:   Is there factual evidence about what  happened about that earlier trial?  Did it go very far or was it ‑ ‑ ‑

MR JACKSON:   A disagreement.  Your Honour, the jury disagreed.

KIRBY J:   I  see, it got that far.

MR JACKSON:   The jury disagreed.  This was a case of an ex officio indictment, your Honours, by the agreement of the appellant and the respondent.  It was a case where there was a  trial before the same judge and the same counsel.  The trial concluded  with a disagreement.  It was agreed that the second trial should commence the next day, I think, or very shortly thereafter, and the trial then proceeded with the results that your Honours have.

HEYDON J:   Mr Jackson, there is one distinction to be drawn, is there not, in relation to your opening remarks?  It is one thing for a jury misdirection supposedly to take place and no complaint to be made about it in relation to an issue which is before the jury, but it is quite another thing for Mr Hanson to say – it goes on to talk about Mr Gribbin being a witness – “Well, there is no dispute about that”.  That is a withdrawal of an issue from the jury.

MR JACKSON:   In our submission, it is, your Honour. It is in this sense. It is perfectly possible – I think section 644 of the Code we have referred to – for a matter to be admitted by counsel in a criminal trial. I will take your Honours to ‑ ‑ ‑

McHUGH J: Admitted by the accused on the advice of counsel? That is what the Crimes Act (NSW) provides.

MR JACKSON:   Your Honour, one is talking about the Criminal Code, of course.

McHUGH J:   Yes.

MR JACKSON: Section 644 of the Code is a provision which says that it may be done by – I will take your Honours to the provision now:

(1)      An accused person may be himself, herself or the person’s counsel admit on the trial any fact alleged against the person, and such admission is sufficient proof of the fact without other evidence.

That provision ‑ ‑ ‑

KIRBY J:   Is this a point of fact or is the point now being raised a point of law that the person is not a witness at the stage it had reached or been proved?

MR JACKSON:   The point I am getting to, your Honour, is this ‑ I will come to the witness aspect more fully later if I may, but may I say two things about it.  The first is this, that this was an issue in relation to which the course taken at the trial, whether it amounted to a formal admission or not, was one which regulated the way in which the evidence was called.

Now, assuming that a person who has given an affidavit is a person who is capable of being a witness, evidence might have been called of the detail of what took place before the judicial committee, what material they relied on.  There was some evidence but that emerged in a sense in a way which was not directed particularly to the issue now sought to be raised.

That is the first point. The second point, your Honours, is that insofar as the question was a factual one, then section 644 would be applicable, in our submission. May I move from that to turn immediately to section 21A of the Magistrates Act.

GLEESON CJ:   Is that a convenient time, Mr Jackson?

MR JACKSON:   Yes, your Honour.

GLEESON CJ:   We will adjourn until 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.21 PM:

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON: Your Honours, may I come, as I said, to section 21A of the Magistrates Act 1991. We accept, as our written submissions have indicated, the possibility, if I could put it in that way, that the term used “under an Act” in section 21A could refer to Acts including the Magistrates Act itself.  Our submission is that that is not the better view and, in our submission, it does not accord with – and I will seek to develop this in just a moment – the legislative structure relating to the Magistrates Court or the actual words of the provision.

Your Honours, may I deal first with the legislative structure relating to the Magistrates Court.  Could I take your Honours to the Magistrates Act, and if I could commence with Part 2 which, as your Honours will see, is headed “Appointment, Jurisdiction and Powers”.

That is a provision to be taken into account because of section 35C of the Acts Interpretation Act. Now, your Honours will see that part of the Act deals with appointment, jurisdiction and powers, and so far as appointment is concerned, that is dealt with by section 4 in the first place, then section 5(1) which deals with the actual ability to appoint, then section 6, the question of appointment of acting magistrates, and section 8, the oath or affirmation to be taken by magistrates.

One comes then, your Honours, to the provision of that part of the Act which deals with jurisdiction and powers, and that is section 7.  Your Honours will see the terms of section 7 and your Honours will see a number of features about it.  The first is that it picks up the phrase “jurisdiction, powers and functions”.  Your Honours will also see that what it is speaking of, jurisdiction and powers and functions which may be exercised by any magistrate.  It is not speaking about the Chief Magistrate particulary, it is speaking about the jurisdiction, powers and functions of any magistrate.

GLEESON CJ:   What is the point of the reference to two justices?

MR JACKSON:   I am just about to come to that, your Honours, if I may say so.  The reference to two justices is a reference to powers under the Justices Act 1886, and may I come to that in just a moment, your Honour.

Now, your Honours will also see that section 7 is not a provision in terms itself seeking to confer jurisdiction, but it says that it may be exercised throughout the State by any magistrate in effect:

the jurisdiction, powers and functions conferred on a Magistrate, or on 2 justices, by or under any law of the State.

In our submission, your Honours, it is ‑ ‑ ‑

GUMMOW J:   What does “law of the State” invoke?

MR JACKSON:   Law of the State, your Honour, in the first place – if I leave aside “by or under” for the moment – means, in our submission, a statute.

McHUGH J:   Why would you read it that way?  It does not say so.  Any section in any Act is a law of the State.

MR JACKSON:   Your Honour, I did not think I was saying anything differently from that.

McHUGH J:   I thought you said another Act.

MR JACKSON:   I said an Act, your Honour.

McHUGH J: An Act. Why is not section 10 a law of the State?

MR JACKSON: Section 10 is in one sense a law of the State. The question is whether it is a law of the State in the sense that it is used in section 7. The point I am seeking to make, your Honours, is that section 7, while it is a provision empowering the exercise of jurisdiction, powers and function, does not itself operate to confer them. The point that I make is this. As section 7 itself suggests, magistrates have judicial and other powers and functions, which are conferred on them by various laws of the State, and if one turns to judicial powers, first of all, the powers so conferred are both civil and criminal.

GLEESON CJ:   If the words “throughout the State” and the words “2 justices” were not there in section 7, what would it do except state the obvious?

MR JACKSON:   Your Honour, it would state the obvious.  One reason for the words “throughout the State” of course, is that it is to be tied in with the provisions which give to a magistrate or permit there to be given to a magistrate at place at which to sit in the ordinary course of events. 

GLEESON CJ:   Are Magistrates Courts in Queensland called Local Courts?

MR JACKSON:   No, your Honour, I do not think that term has ever been used as best I can recall.

HAYNE J:   Were there once bailiwicks? 

MR JACKSON:   Your Honour, I think the answer is no. 

McHUGH J:   What about – it is probably the same thing – but geographical limits to jurisdiction as in New South Wales there used to be.  I mean, a magistrate sitting at Paddington had jurisdiction at Paddington.

MR JACKSON:   There were some, your Honour.  As your Honour would appreciate, over time the activities of stipendiary magistrates became – I am sorry I am putting it badly.  As stipendiary magistrates became the norm rather than justices, the civil jurisdiction particularly – the geographical limits of it tended to expand.  Initially, I think it is right to say, your Honour, there had been some limits.

GLEESON CJ:   First thing you had to do in a tenancy case was tender the road map and prove it was within the jurisdiction of the court. 

MR JACKSON:   Well, your Honour, the practices adopted in different jurisdictions vary, of course.

GLEESON CJ:   I just wondered whether the main point of section 7 is in those words “throughout the State”. 

MR JACKSON:   Your Honour, it is certainly a point of it.  There is no doubt that that is intended to indicate that the powers may be exercised by a magistrate throughout the State.

McHUGH J:   But the section would serve no purpose, would it, unless that was the point of the section because they have the powers, jurisdiction and functions conferred on them by another law of the State so surely the only purpose of section 7 is to indicate that these functions can be exercised throughout the State?

MR JACKSON:   Your Honour, I am happy to adopt that, particularly in the light of the reasoning underlying the way in which your Honour just put it to me, and that is that the powers, functions and jurisdiction are conferred by another law.

McHUGH J:   Including section 10.

MR JACKSON:   Your Honour, that ‑ ‑ ‑

GUMMOW J:   This expression “any law” is not in the same vein as 21A, which is “under an Act”.  It usually suggests delegated legislation as well, does it not?

MR JACKSON:   Your Honour, by or under.

GUMMOW J:   Yes.

MR JACKSON:   Now, “by the law” one would ordinarily expect to be by a statute, or “under a law” may indicate that it relates to delegated legislation.

McHUGH J:   What about the common law?  Why is the common law not included?  It is a law of the State.

MR JACKSON:   Well, the term “law of the State”, your Honour, in our submission, would ordinarily refer to an enacted law, enacted whether by Parliament or by delegation.  The term “law of the State”, I think your Honour Justice Hayne referred to a definition of it, or a reference to it, in the Acts Interpretation Act.

HAYNE J:   And which takes it beyond purely Queensland law to other State and Territory laws - see section 7(2).  Whether the reference which is found there to laws of the Commonwealth is apposite and has any work to do might itself be a separate issue, but ‑ ‑ ‑

MR JACKSON: Well, your Honour, what section 7(1) of the Acts Interpretation Act says is that:

a reference . . . to a law . . . or a provision of a law . . . includes a reference to the statutory instruments made or in force under ‑ ‑ ‑

GUMMOW J:   Section 7 may have been important for the operation of section 39 of the Judiciary Act because that invested federal jurisdiction in State minor courts within their own limits of jurisdiction.

MR JACKSON:   Yes, your Honour, that is so.

GUMMOW J:   So you would have had a Queensland magistrate straying outside his bailiwick and then the exercise of federal jurisdiction would not be efficacious. It would overcome that sort of problem. Does section 7 have any history? What was the Act before the Magistrates Act 1991?

MR JACKSON:   That Act itself ‑ ‑ ‑

GUMMOW J:   Was the Justices Act, was it?

MR JACKSON:   No, your Honour.  It was the Magistrates Court Act 1922, I think.  I do not know the exact date.  There has been a Magistrates Court Act, as such, for many years.

GUMMOW J:   …..find that being repealed anywhere?

MR JACKSON:   It still exists, your Honour.  I was about to come to it, if I may.  What your Honours will see is ‑ ‑ ‑

HAYNE J:   You would not want to make it easy, would you?

MR JACKSON:   Your Honour, I am sorry.  What I was about to say, your Honours, a few moments ago was this, that the Magistrates Court, in terms of jurisdiction in a strict sense, first of all, has both civil and criminal jurisdiction.  The conferral of civil jurisdiction is by the Magistrates Court Act 1921, section 4.  That is in the bundle of material, the first volume of materials at page 97 of the legislation, and your Honours will see the provision, which confers the civil jurisdiction.  I will not take your Honours to the detail of it, but could I refer particularly to the last few lines of it, which does refer to respective districts.  Now, your Honours, how much that requires rationalisation of section 7 may be a question, but not I beg your Honours for today.

Could I also say, your Honours, that the ambit of the civil jurisdiction may be enlarged by consent - that is section 4A - and there are provisions for abandonment of excess and also transfers, and your Honours will see that in sections 5 and 5A.  So, your Honours, that is where one sees the civil jurisdiction of the Magistrates Court coming from. 

In relation to criminal jurisdiction of magistrates, one goes first to the Justices Act 1886 and in particular to section 19 of that Act which is at page 100 of the same volume. Your Honours will see that section 19 – if I could say two things about it to your Honours. The first is that is where your Honours will see a reference to two justices, but it also is the provision which says that offences which are non‑indictable may be dealt with by a Magistrates Court. The reference to two or more justices is reflected in section 7 of the Magistrates Act. 

Your Honours will note also that there is provision in the Criminal Code itself in Chapter 58A and in particular section 552A, it is at page 104 of this volume, dealing with circumstances in which indictable offences are being dealt with summarily or may be required to be dealt with summarily.  That follows on in the remainder of that chapter.  Those are the enactments dealing basically with civil and criminal jurisdiction in the strict sense. 

If I could turn then to functions and powers which are or may perhaps be of an administrative nature, there are many enactments which confer such powers and functions.  Your Honours, notably - and I appreciate what your Honour Justice Gummow said in relation to Murphy earlier, that it may be a question whether it is properly judicial or not - section 104 of the Justices Act is a provision under which there may be an examination of witnesses in relation to an indictable offence, committal proceedings, and your Honours will see that at page 101 and your Honours will see that it says that the examination of witnesses may be conducted by a single justice, although not necessarily so.  In fact, as your Honours would expect, they are conducted in the ordinary course of events by magistrates.

Could I just invite your Honours to note one thing. I do not think that the provision will be in the documents that your Honours have, but section 136 of the Criminal Code makes it an offence for a justice sitting alone to deal with a matter in which he is partisan, to put it very shortly and very briefly. Particularly, section 136 deals with the question of refusal of bail and then 136(b) exercise of jurisdiction wilfully and perversely:

in any matter in which the justice has a personal interest.

I simply mention that for completeness.

HAYNE J:   Is a justice there, does that encompass magistrate?  The Acts Interpretation Act tells us it is a Justice of the Peace.

MR JACKSON:   Yes, your Honour, that is all that it tells us.  Your Honour, I am sorry I just do not have quite the provision that ties up one justice with magistrates in relation to that and I will endeavour ‑ ‑ ‑

HAYNE J: Because as things presently stand on the provisions you have taken us to so far, section 21A could not be engaged with respect to a section 104 committal which was conducted by a single justice. Is that right?

MR JACKSON:   Yes, that would be so. 

McHUGH J:   Is not “judicial officer” defined in the Criminal Code to include a Justice of the Peace constituting the court?

MR JACKSON:   Yes, your Honour, it is but that would not ‑ ‑ ‑

McHUGH J:   May that be sufficient?

HAYNE J:   That is enough.

MR JACKSON:   That might get one section 30.

GUMMOW J:   Exactly.

MR JACKSON:   Unless the magistrate was a single justice it would not get you section 21A. Your Honours, could I say that a second major area where functions and powers of an administrative nature are conferred on a magistrate is in relation to search warrants and we have referred your Honours to a list of statutes in paragraph 61 of our written submissions and also annexure A sets out a list of statutes of Queensland, I think there are 78, where a power of that general nature is conferred.

KIRBY J:   How far does this argument take us because there is no doubt – one would see that they appear to fall within the statutory remit but the words used, no doubt because of the difficulty of deciding some other formula that would be sufficiently encompassing, are on their face wide enough to include internal, administrative acts for which the law provides?

MR JACKSON:   Well, your Honour, with respect, I want to deal with a number of aspects of it, but one is that, your Honour, we are after all dealing with a statutory provision which is conferring an immunity.  The general approach, in our submission, would be that whilst the words are to be given their ordinary meaning, if there are two aspects to which they are properly applicable and one seems to go a long way then, in effect, there would be a lot to be said for adopting the narrower view.  That is the first thing.

KIRBY J:   I should say on that that I meant to draw to the appellant’s notice that there is a decision of the Supreme Court of the United States in Forrester v White 484 USR 216 which appears to give that notion some support.  Justice O’Connor in the course of discussing, obviously not this legislation but another legal situation said, quoting an earlier decision, that immunities of this kind are pretty strong medicine and that they are generally to be reserved for that reason to the appropriate case.

MR JACKSON:   Your Honour, the malaise to which the medicine will be directed is something that one needs to examine.  What I am seeking to do at the moment – and I will come to the remaining terms of the Magistrates Act in just a few moments – is to say that if one looks at the background to which section 21A relates, the more likely interpretation of the provision is that it is dealing with statutes which, in terms of section 7, if I could say that, confer powers and immunities on magistrates to be exercised and I am not just speaking about the internal administration of the court. Now, I need to go back to that Act, and I will do so in just a moment.

McHUGH J:   But you have to do more than that to run this argument. Your written submissions confine the construction of section 21A to powers exercised other than under the Magistrates Court Act, but, if you are going to go further, what is the criteria or criterion by which you determine which are administrative acts within 21A and what are not administrative acts within 21A?

MR JACKSON:   Well, your Honour, if one goes further, one is looking, in our submission, to see what is the nature of the function that is being performed.  If the function is one of decision of a matter in which the magistrate is an independent person dealing with the public or public activities of any kind, that is so.  When I say that, I intend to exclude from that dealing with the provisions dealing with the internal activities of the court. 

McHUGH J:   It seems a curious result that a magistrate may have protection under section 3 of the Assisted Students (Enforcement of Obligations) Act because he makes a decision as to whether he or she shall put a signature on a contract, and yet has no protection if the Chief Magistrate reprimands a magistrate for neglect of duty or publishes a report containing a criminal defamation to the Minister.

MR JACKSON: Your Honour, if one is speaking about – I am going to deal with that, your Honour, but may I just say that there should be remedies. The point I am seeking to make about it is that to read section 21A in the wider form has the result that people’s remedies are taken away in circumstances where there is no very compelling reason for doing so. Now, your Honour, may I come back to that – I will in just a moment.

Before doing that, could I just say these things.  In addition to the Assisted Students (Enforcement of Obligations) Act, your Honour – an Act which I remember with some pain – what the magistrate is doing there is not in a sense putting the magistrate’s own signature on, but dealing with a person and exercising a function of deciding whether it is appropriate for another person to do something.  It is not something internal at all.

McHUGH J:   I know.

MR JACKSON:   Your Honours, could I just say that there is a miscellany of other statutes which confers functions or powers.  We refer to them in paragraph 61 of our written submissions.

GLEESON CJ:   In your distinction between something internal and presumably something external, where do you place assigning a magistrate to sit on a case?

MR JACKSON:   Something internal, your Honour.  It is just as internal as, for example, the Chief Justice of a court saying, “You are the judge who is going to Cloncurry”, or wherever it might be.

GLEESON CJ:   There is a common law immunity for that, is there not?

McHUGH J:   The New South Wales Court of Appeal has so held, has it not, in one of the Rajski matters.

MR JACKSON:   Your Honour, could I just say in relation to that, if one was speaking about the common law, it might be a common law immunity, but one is not speaking really about the common law for the present purposes, your Honours.

KIRBY J:   But I think that the Rajski Case that was involved was one which suggested that this was within the judicial activity.

MR JACKSON:   Yes, he was.

KIRBY J:   And I least remember vaguely that my belief in that regard was assisted by the fact that in international statements on the judicial function for the purpose of protecting judicial independence, it included the very subject of assignment because it is so integral to the judicial branch and the way it operates.

MR JACKSON:   Your Honour, could I perhaps move on and come back to that.  We have referred to a number of other statutes in our written submissions in paragraph 61.  Perhaps there are others, but those are the ones we are able to find.  Now, your Honours ‑ ‑ ‑

KIRBY J:   I just do not think that takes it very far because there is no real contest that there will be lots of things like telephone warrants and so on that do fall within the phrase.  The question is whether the phrase is wide enough, that it extends to this larger dimension of internal administrative activities.

MR JACKSON:   Your Honour, it takes it a long way because it demonstrates, in our submission, what the provision is, at least in very large measure, seeking to cover.  It shows the area of legislation in which the Magistrates Act works.

KIRBY J:   An area of legislation.

MR JACKSON:   The area, with respect, your Honour.

KIRBY J:   That is the question.

MR JACKSON:   I know it is the question, your Honour, but if one is speaking about an enactment which deals with the powers and jurisdictions of the magistrate, what we are seeking to do is identify what that covers.  It covers a very wide range of things and it is something of an add-on, as it were, to take the various provisions of the Magistrates Act itself.

McHUGH J:   But why should the legislature distinguish between an Act done under the Assisted Students Act, and the act of the Chief Magistrate reprimanding a magistrate who is guilty of conduct unbecoming a magistrate.

MR JACKSON:   Your Honour, I will come back to the reprimand provision in a moment if I may, but may I go to the terms of section 21A, and your Honours will see that, like section 7, section 21A is not concerned with the Chief Magistrate particularly. What it speaks of is the position of all magistrates, and it is saying:

A magistrate has, in the performance or exercise of an administrative function or power conferred on the magistrate under an Act, the same protection and immunity -

et cetera.  Now, your Honours, what it is speaking of, in our submission, is the performance or exercise by any magistrate of a power conferred by an enactment, an enactment, in our submission, which confers, in the manner I submitted earlier, jurisdiction or powers on a magistrate.

In that regard there is not to be seen in the Acts Interpretation Act a provision that says in relation to Acts generally, that a reference to an Act – the use of the term, for example, “under an Act” includes the Act in which it appears. 

GLEESON CJ:   Is the power to reprimand in section 10 exercised in a public fashion? That is to say, is the reprimand and the ground for reprimand made public?

MR JACKSON:   No. What happens, your Honour, is that the power to reprimand under section 10 is one which is expressed in section 10(8) as a power to discipline by way of reprimand. In the ordinary course of events, the reprimand, one would expect to be, would be a communication from the reprimander to the person the subject of it. One then sees that under subsection (10), if that happens the Chief Magistrate has to “Submit a written report on the matter to the Minister”. In relation to that, your Honour, there would, in our submission, pretty plainly be in relation to the report qualified privilege in defamation terms, qualified privilege which would be given by section 16(1)(a) and 16(1)(e) of the Defamation Act, which is the relevant legislation now in Queensland.  There may also be, but perhaps not so arguably, absolute privilege given by the absolute privilege provisions of that Act. 

But in relation to the power to reprimand, it is one thing to say that the magistrate may be protected from an action for defamation, but there is not any reason, in our submission, why the magistrate, if the magistrate exercises the power in a way which would otherwise attract a criminal sanction, why the person who is the subject of the reprimand should be deprived of remedy or why the person who gave the reprimand could not be the subject of criminal proceedings.  There is no particular reason to say that a reprimand so given and given in circumstances which would be an exercise but a “corrupt”, I use the term generically, exercise of the power should not be the subject of it. 

McHUGH J:   These immunities are not rights given to the magistrates; they are public rights which are exercised.  The magistrate is merely the repository of the public right. 

MR JACKSON:   Yes.

McHUGH J:   And they are given for the protection of the public, so that magistrates in exercising their duties will not be hampered by the potential for attacks by disappointed persons who are affected by their decisions.  That is the public policy behind them and it is an invitation to error to look at the matter in terms of rights of the people who ultimately get the benefit of the immunity.  It is for the protection of the public, for the ‑ ‑ ‑

MR JACKSON:   Of course it is, your Honour, but is a question of how far the protection of public requires the immunity to extend.  Your Honours, could I just say this.  I referred earlier to a provision of the Acts Interpretation Act. Section 36 of the Acts Interpretation Act defines “Act” but simply says for that one goes back to section 6 and the meaning in section 6 and 7 of that Act. Section 6 says that it means an enactment of the Queensland Parliament for relevant purposes, and section 7 says “a reference” to an Act - your Honours, I think I have referred to that provision already.

The point about it, your Honours, is that if one looks at section 2 of the Acts Interpretation Act, subsection (2) says:

In this Act, a reference to “an Act” includes a reference to this Act.

That provision does not apply generally. So that when one is speaking about a reference to “an Act” in section 21A, there is not a presumption that it is speaking about this Act as well as any other Act.

HAYNE J: Just to return a moment to section 7, if I may, and the reference to “throughout the State”, at least as at 1909 in the Justices Act Amendment Act of that year, there was a concept known as the Petty Sessions District, see section 2, and as at 1936 section 6 of the Justices Act 1886 contemplated appointment of justices “by a General Commission of the Peace . . . or by a special appointment” and:

In the latter case the justices so appointed shall be deemed to be included in the then subsisting General Commission of the Peace . . . or for such Municipal or other District, as the case may be, from the time when they are so appointed.

Provision was also made in section 8 for “Chairman of Municipal Districts” ex officio to be justices.

MR JACKSON:   Yes.

HAYNE J:   So that the concept of territorial limitations to the jurisdiction of justices is something that is found at least at that point in history.

MR JACKSON:   Yes, your Honour, and of course the point at which, with the increasing number of stipendiary magistrates, the provision that was the predecessor of section 7 came into being I no doubt will endeavour to find for your Honour.

Your Honours, could I just say that if one looks at the history of section 21A it does not suggest, in our submission, that the words “under an Act” should be treated as including the Act as well. Could I refer your Honours to the Justice Legislation (Miscellaneous Provisions) Act (No 2) 1999, which is at page 49. Your Honours will see there are three relevant sections of that Act. There is section 18, which appears at page 63; that is dealing with the District Court. Again, it speaks of judges of that court generally. One sees, your Honours, section 32 which is at page 71 and inserts section 21A in the Magistrates Act – there named the Stipendiary Magistrates Act – and one sees also, your Honours, section 35 at page 72 which deals with the position of the Supreme Court.

One sees they all refer to the exercise of administrative functions or powers conferred on the judge under an Act.  The explanatory notes to that amending legislation, which are at page 84 of our volume 1 of the legislation, are to the same effect.  Could I take your Honours to the bottom of the second last bullet point on page 85, which simply paraphrases the provision, and then to page 91, where it refers to clause 18, inserts a new section 28AA granting protection and immunity to a judge of District Courts following concern, and your Honours will see the remainder of that paragraph.  Those statements were simply adopted in relation to the amendment to the other two provisions dealt with as clauses 32 and 35 at page 93.

Now, your Honours, in our submission, there is not any really very persuasive reason, with respect, why the terms of section 21A should be given the wider meaning.

McHUGH J:   Well, except the language.  Despite Mr Walker’s reluctance, “judicial and administrative” seems to me to describe the universe, does it not?

MR JACKSON:   Well, your Honours, they describe a universe, but perhaps it is a universe that has only two groups of planets in it.  One is the exercise of judicial power.  The other is the exercise of powers which are similar to, in a way, judicial powers, but they are powers conferred under an Act in relation to which the question of independence, dealing with the public, is one of significance.

McHUGH J:   But on that theory, why was not the legislation expressed in terms “All magistrates acting judicially”? 

MR JACKSON:   I am sorry, your Honour, why was not?

McHUGH J:   Not really judicial functions in the sense of exercising judicial power, but acting judicially, which would have included powers that were not exercises of judicial power.  But the legislature has used the word “administrative”.

MR JACKSON:   Your Honour, what it is doing is to take as a reference point the power, protection and immunity in judicial proceedings and then says if an administrative function or power is conferred on the magistrate by an Act, then a similar protection applies.

McHUGH J: Yes, I know, but the section 10 powers would be amenable to the prerogative writs if it was not for 21A. If your argument is right, the Chief Magistrate had no protection against the prerogative writs.

MR JACKSON:   Well, your Honour, that has happened. It is referred to in the material where – there was a challenge referred to as the proceedings before Justice Mackenzie in the Supreme Court. There was a challenge on administrative law grounds to, I think, an exercise of power, because of non‑compliance with section 10(4).

GLEESON CJ:   That was the background to this dispute actually.

MR JACKSON:   Yes.  Some of the evidence is perhaps a little confusing to someone perhaps not at the trial, because it refers to two affidavits, one in those proceedings and one of importance here.

Your Honours, there is no particular reason why there is a need for any protection.  There is a whole structure of a judicial committee with senior judges set up to deal with those things.  We are hardly talking about circumstances where the Chief Magistrate needs to be protected in any other way. 

Your Honours, could I go on to say that the rationale for the extension of an immunity, or the rationale for the immunity – we have referred to some of the dicta in our written submissions in paragraphs 62 and 63.  May I take your Honours briefly not to all those passages, of course, but to some of them, because we have only put in some very narrow extracts.  Could I take your Honours to what was said by Justice Gaudron in Herijanto v Refugee Review Tribunal (2000) 170 ALR 379 at page 382 paragraph 15, where her Honour, in that paragraph, referred to the basis for the immunity of judges – in that case, from compulsory disclosure – as being based on the principle of judicial independence. That applies equally, in our submission, to construction of provisions of the present kind.

Could I refer to Sirros v Moore [1975] 1 QB 118, and, your Honours, to Lord Denning at page 132 in the passage commencing “The liability of the judge” under the heading “Acts within jurisdiction”. Your Honours will see that passage going through the remainder of that page, but, in particular, between F and G:

The reason is not because the judge has any privilege to make mistakes or to do wrong.  It is so that he should be able to do his duty with complete independence and free from fear. 

At page 140, your Honours will see between letters D and E a reference by Lord Justice Buckley to a passage from Anderson v Gorrie.  And at page 146 between letters F and the bottom of the page, a reference to Taaffe v Downes, in particular, to the quotation from Justice Fox, the second sentence:

It is necessary to the free and impartial administration of justice –

and your Honours will see that going onto the next page.

Finally, your Honours, in that regard, could I refer to Yeldham v Rajski (1989) 18 NSWLR 48 at 63. Your Honour Justice Kirby, at page 63, in (iii) at the bottom of the page referred to the ultimate answer given by courts:

in defending, on public policy grounds, the ample protection . . . It is the explanation offered by Lord Bridge in Re McC –

and we have given your Honours a reference to that in our materials, and then Lord Bridge put the proposition perhaps somewhat enthusiastically.  Your Honours, could I refer also to page 69, Justice Hope, in - between letters E and F, to the bottom of the page:

The basis of the immunity . . . on high policy . . . It is a policy designed to protect the citizen and not merely to give protection to judges.

Now, your Honours, in all those references, what is looked to is the protection of the public, and that really does not exist, in our submission, in any significant way in relation to the provisions of the Act presently in question. 

Could I say, your Honours, that some enactments dealing with rather similar topics have referred to ministerial duties.  This provision does not go so far.  Could I give your Honours an instance of that in the New South Wales provision, the Judicial Officers Act 1986, section 44A to 44C. In each case your Honours will see the reference to ministerial duties, a provision which would be more appropriate for the matter in question here. Could I take your Honours then back to the terms of the Magistrates Act itself.

GLEESON CJ:   Just before you leave this case of Yeldham v Rajski, the test that was there adopted in relation to the common law immunity was conduct in performance of judicial functions, or intimately associated with performance of judicial functions, for example, at page 62G.

MR JACKSON:   Sounds very like barristers’ immunity.

GLEESON CJ:   I was thinking of assignment of judges or magistrates to hear a particular case.  In a later case of Rajski v Wood, in which I had the pleasure of being one of the defendants, that matter of assigning a judge to hear a particular case was said to be not justiciable.

MR JACKSON:   Your Honour, assuming that to be so, then what that really does demonstrate is that the need to have a provision such as section 21A dealing with matters such as the assignment of magistrates to particular cases or particular places is, in our submission, not demonstrated. The basis for interpreting the provision widely really would not exist if that were otherwise the case in terms of the immunity and that would mean, of course, giving a view to the judicial function used in section 30.

Your Honours, could I just turn then for a moment back to the remaining parts of the Magistrates Act and could I go to Part 3, the provision dealing with the Chief Magistrate. Your Honours will see in sections 10(1) and 10(2) that there are widely expressed powers. It is only in rare situations such as the present that the question of possible proceedings could arise. Your Honours, could I also say there are also stringent requirements under sections 10(3) and 10(4) through to (7).

Now, in relation to those matters, your Honours will see that there are particular requirements placed on the Chief Magistrate.  If the Chief Magistrate does not comply with those matters, then either the person who is aggrieved by them is able to take proceedings or the position which would obtain is that the matter could go to the judicial committee, as it is called.  In our submission, there is no demonstrated need for an immunity in respect to any of these matters.  If one says the Chief Magistrate needs to be immune, one asks why, and there is not any particularly compelling reason, in our submission, where powers are limited and where a structure for appeal is set up. 

Could I go to section 10(8), the power to discipline by way of reprimand. Now, your Honours, in relation to that, if the exercise of the disciplinary power by way of reprimand is one which is exercised in a fashion which otherwise would be criminal, then, in our submission, the reason for saying that a wider meaning is to be given to the immunity in section 21A really does not exist. One is dealing with people who would be affected by what is done and there is not a particular reason for saying there is an immunity from criminal proceedings in respect of that.

McHUGH J:   But look at 119B itself.  It protects a judge and protects a magistrate exercising judicial power even though the judge or magistrate retaliates against a witness, or, in the case of a judge, a juror, because of something lawfully done by the juror or witness.  You might say, “Well, what’s the point of giving a judge or a magistrate protection there?”  Well, it is the reason I put to you earlier.  It is for the greater public good, so that judges and magistrates just will not have to be concerned or worried about the possibility of being sued or prosecuted by people making claims against them.

MR JACKSON:   Your Honour, the provision which would give protection would really be section 30.

McHUGH J:   Well, I know it would be section 30, but you ask yourself why.  Why is 119B a section which does not expressly apply to a judicial officer as section 120 does, for example?  Here is a section alongside it and yet for some reason the legislature, knowing, one assumes, of the existence of section 30, has given immunity in relation to judicial officers.

MR JACKSON:   Your Honour, the provisions of the Criminal Code dealing with the position of judicial officers are ones where there is no doubt that a view was taken by the legislature that there should be, in relation to judicial officers, a relatively limited area.  Your Honours will have seen that in the provisions – section 120, your Honour.

McHUGH J:   Yes.  That is the case of corruption.

MR JACKSON:   Judicial corruption.

McHUGH J:   Yes.

MR JACKSON:   So that says, “This is a matter that is not protected”.  Now, your Honour, that expresses a value.  Having said that, one is bringing over a value into another area, and it is a question of what is brought over.  In relation to section 119B, it is not the case where one is speaking about a judicial officer in the present case.  I mean, it is speaking about a person who holds an office, but one cannot take it further than that.

Your Honours, I referred to the Defamation Act provisions dealing with section 10(10). Could I say that if one goes to the remainder of the Magistrates Act, your Honours will see that Part 4, dealing with “Reviewable Determinations”, says nothing about conduct of the Chief Magistrate.  We would refer to sections 10B to 10I.  If one looks at the provisions of Part 5, there is nothing there.  If one looks at Part 6, it is only section 13(1) that could have any potential relevance, and it requires there be compliance with “reasonable directions”.  The provision contains its own limitation.  Why add another?  It is a provision designed to regulate the activities of the Chief Magistrate.  Now, if one goes then to Part 7 ‑ ‑ ‑

McHUGH J:   No, but in answer to your rhetorical question, section 13 by the use of the reasonable direction, is aimed at protecting the magistrate the subject of the direction.  That person is only bound to comply with reasonable directions, but in relation to the Chief Magistrate, maybe they needed protection if they give an unreasonable direction.

MR JACKSON:   Well, your Honour, there is not any very good reason, we would submit, why one would treat the two differently.  What the legislature has done has been to say that the power conferred on the magistrate is of a certain kind.  The directions are to be reasonable, magistrates are to comply with reasonable directions.  But, your Honours, if the direction is unreasonable, then in the circumstances in which a Chief Magistrate is likely to be sued in respect of it, are relatively limited one would think, but the situation which would obtain would be that it would presumably provide an insufficient basis for, for example, an exercise of power under section 15(4).

Again, your Honour, if one goes back to section 5(5) it might be something on the way to there being good reason or have good reason in terms of that provision.  But the point of it, your Honours, is that whether it be, if it is – I am sorry, your Honour, I am putting it badly - if one goes to section 15(4), the result of section 15(4) is that there is proper cause to remove the magistrate, but, your Honours, it is the Supreme Court, there is a remedy given.  One goes to the Supreme Court under the succeeding provisions, so there is an independent decision. 

Your Honours, if the magistrate is suspended, section 16, there is an independent decision by the court.  Your Honours, also if one goes then to Part 7, the general part, one sees that the only relevant provision there is section 18A(3)(b) and that is a reviewable determination under the Act in the definition provision, so that it is capable of going to the judicial committee.  So the point we would seek to make about it, your Honour, is if one is looking to the great need for additional protection, it is not there. 

GLEESON CJ:   Apart from the qualification expressed in the introductory words to section 30 of the Criminal Code, is section 30 subject to any qualifications except those that follow from the first half dozen words?

MR JACKSON:   I think the answer is no, your Honour.  I should say perhaps none relevantly.  It is possible there was some statutory provision, I suppose, but I am not aware of any that affects it.  We do not think there is one.

GLEESON CJ:   So it is perfectly clear that if the appellant had been herself presiding over civil, or even criminal, proceedings in which Magistrate Gribbin was a party and she decided those proceedings against him for purposes of retaliation of a kind described in section 119B, she would be immune from prosecution.

MR JACKSON:   Yes, your Honour.  There may be a question whether that fitted within the terms of section 120 – it probably would not – but that would be so, yes.  Your Honours, that is what I wanted to say about that ground. 

May I turn then to the question of “witness”, ground 3.  There are two issues raised under this head.  The first is that the fact that Mr Gribbin’s affidavit was considered by the judicial committee did not make him a witness in terms of section 119B, and, secondly, that the evidence did not establish that his affidavit had been before the judicial committee before the email was sent, which is exhibit 2, on 18 September 2002.  Could I go first, your Honours, to the Criminal Code, to section 119, where “judicial proceeding” is defined.  One notes several things about the definition.  It is a broad provision.  It refers to “any proceeding” which is held “or taken in or before” and then it lists:

any court, tribunal or person, in which evidence may be taken on oath.

The definition does not require that any such evidence in fact be taken on oath in order for the proceedings to be within it and there is no requirement that the evidence be given orally.  Giving evidence by affidavit has been around for a long time. 

Your Honours, when dealing with the question of witnesses, if one goes to the perjury provision of the Code, which is section 123, the perjury provisions in subsection (1) deal with judicial proceedings and your Honours will see that subsection (2) recognises that:

the testimony [may be] given on oath or under any other sanction authorised by law.

Subsection (4) notes that:

It is immaterial whether the false testimony is given orally or in writing.

And one sees also that subsection (6) refers to the fact that:

It is immaterial whether the person who gives the testimony is a competent witness or not, or whether the testimony is admissible in the proceeding or not.

Your Honours, what that tends to indicate is that there is no very good reason, in our submission, to give the term “witness”, when used, for example, in section 119B, any particularly narrow construction.

Now, your Honours, if one goes from there to the Magistrates Act, section 10F, one sees that the judicial committee is not bound to receive evidence on oath, but of course it may and so, in our submission, it would satisfy the definition of “judicial proceeding” in section 119.

Could I turn then, more specifically, to the first point raised by the appellant under this head.  It is clear, in our submission, that the affidavit of Mr Gribbin was before the judicial committee.  That is accepted by the respondent’s submissions in reply, paragraph 15, and, your Honours, it was manifestly the case that that was so and, without going to the detail of it, may we refer your Honours to the passages of evidence that are set out in paragraphs 37 and 39 of our written submissions.

KIRBY J:   On the face of the report of the decision of the committee, it is clear that they had it, but the point raised is when they had it, and whether they had it and has been shown to have had it before the email was sent.

MR JACKSON:   Your Honour, could I say as to the first thing your Honour mentioned then, one can see elements, as your Honour said, of the affidavit reflected in the committee’s reasons.  We refer to that in paragraph 39A of our submissions.  If one turns to the second point, the one your Honour just raised, namely, that there was no evidence that Gribbin had become a witness before the email exhibit 2 was sent, that has a number of defects, in our submission.  The first is that it was – one is simply talking about a temporal question.  It was conceded at trial that he had been a witness.

Could I take your Honours to our written submissions in paragraph 38.  If I may take your Honours very briefly to these passages.  It had been made clear at the pre‑trial hearing that the question of whether he was a witness was not, or was unlikely to be, in contention.  That is in page 5, about line 44, going through to page 6, line 4.  This is Mr Hanson, senior counsel for the appellant.

Your Honours, when it came to the trial, the trial commenced and the Crown Prosecutor’s opening stated with no hint of dissent that only three matters were, as she understood it, in issue.  You will see that at page 43, about line 41, and your Honours will see, if I could go a little further up the page, about line 12, the Crown case in relation to that first charge and you will see that set out for the remainder of that paragraph, and then at the bottom of the page in the last paragraph she comes back to it and your Honours will see that she speaks of the first charge, speaks of the elements of it, and then that goes over to the top of the next page, and when one comes to the passage between lines 5 and 10 on page 44 she says:

So that, if you are satisfied in relation to that first count and those three elements which are in contention -

which she then lists.

Now, your Honours, that is the opening.  We are not dealing with people who are ingénues in the area.  In particular, the previous trial had just finished.  So that is what she said; not a hint of dissent from it.  When counsel for the appellant was opening the defence case, which you will see at page 45, you will see at about line 39 he refers the jury to the copy of the indictment and says at the bottom of the page, referring to count 1:

None of that is in dispute, that it was done on the 18^th of September at Brisbane.  Threatened; well, it’s not really in dispute.  She announced that she wanted to do something or other, wanted him to do something.  An injury or detriment; that’s in dispute.  Did she threaten to cause him a detriment?  The word “detriment” is in dispute.

It then goes on to talk about Mr Gribbin being a witness.  Well, there is no dispute about that.  Then it says it was done “without reasonable cause”.  That’s disputed.

Now, your Honours, the passage goes through to about line 36 on the same page, but it is absolutely clear this matter was not in issue.  When one comes to the summing up at page 460 at lines 6 to 11:

I come now to a brief summary of Mr Hanson’s submissions.  You will recall that he began by telling you that there were three matters in issue on the first count –

which the judge then sets out.  There is no reason at all, in our submission, why the jury could not act on that and no reason at all why further evidence was necessary.

The second point we would seek to make about it is that the appellant’s argument does, we would submit, involve giving section 119B a rather narrow operation.  It gives it a narrow operation because it does not take into account sufficiently the breadth of the definition of “judicial proceeding” in section 119 and it leaves out of account also the words in 119B, “anything lawfully done”, which is part of the constitution of the offence.

Now, your Honours, if one reads the provisions together it can be seen, in our submission, that the threat contemplated by 119B is one in retaliation because of anything lawfully done by a witness in any proceeding taken in or before a tribunal in which evidence may be taken on oath.  Your Honours, the third thing about it is that in this case the tribunal was in being and had given directions as to the evidence.  Could I refer your Honours to two things.  The first is in our written submissions in paragraph 37 we refer to Mr Searles’ evidence.  May I take your Honours to one passage of it.

Mr Searles was a private practitioner who had been retained by the Crown to advise on two matters.  They were two matters before the judicial committee.  At page 284, what your Honours will see ‑ ‑ ‑

KIRBY J:   Could you just at some stage – you will no doubt come to it, although it was not pressed in oral argument, but given that the Crown bore the onus of proving lack of reasonable excuse and given that Mr Searles’ evidence was clearly relevant to that, it does seem curious that the Crown did not call him in its case, but required the accused, as if on showing a defence, to call him.

MR JACKSON:   Your Honours, we have dealt with some reasons in our written submissions ‑ ‑ ‑

KIRBY J:   Anyway, I will not divert you now, but I will just tell you that it is in my mind, even though Mr Walker did not really press it orally.

MR JACKSON:   Well, can I just say in relation to it, your Honour, I will come back to it.  But the question whether the judge should give an  intimation that Mr Searles should be called by the Crown had been agitated in pre‑trial consideration by him and he had decided not to.  Now, there might have been, but was not, an application to the judge to say, when summing up to the jury, “You will appreciate that Mr Searles had to be called, if he were to be called, by the defendant, by the accused”, but there was no comment made about it at all.  The judge was not requested to make any comment.  No complaint about it, your Honour.  It is so easy for us to forget sometimes, but we are actually two courts above the trial, and there has been ‑ ‑ ‑

KIRBY J:   That is true, but one would always remain a degree vigilant for the strong principle and tradition of the Crown as a fair model litigant.  It just seems, given the onus of proof on the issue, a little unusual as a decision, at least to me.

MR JACKSON:   Well your Honour, if one says, where in the end is the miscarriage of justice – and we have dealt with this issue in our written submissions – our learned friend’s argument really says, “There was a miscarriage of justice”, but that must simply be because the result was a conviction.  May I come back to that and I will do so briefly.

Your Honours, could I go to page 284.  What your Honours will see between lines 5 and 10, Mr Searles said:

The Chief Justice . . . wrote on the 15^th of August 2002 to Ms Fingleton acknowledging receipt of the material from Ms Thacker and calling upon Ms Fingleton to respond by the 30^th of August by affidavit, and in that same letter the Chief Justice said that whilst legal representation was in order for the parties, the committee hadn’t at that point made up its mind whether legal representation would be allowed on the day or whether there’d be in fact an oral hearing. 

Now, your Honours will see, if one goes down through the remainder of that page, that he helped her put together an affidavit to comply with the timetable.  At about line 25, he enclosed three copies of her affidavit:

and advised him that our client, Ms Fingleton, was content for the matter to be dealt with on the papers –

without an oral hearing and no lawyers; that is going a little further down the page.  They had received Mr Gribbin’s affidavit around 15 August and then, second last paragraph on the page, there was:

the finalisation of the affidavit in response, which was filed on the 30^th of August –

And your Honours will see there was a discussion of it; that is at the bottom of the page and the top of page 285. 

Now, your Honours, what one sees is that the affidavit had been filed to the extent that it was part of the material before the committee.  One sees there had been affidavits in response and the matter was to proceed on that basis.  Now, your Honours, if the point had been taken that there should have been further evidence called, that the matter was in issue, then evidence might have been adduced to see the dates on which the matter was dealt with by the judicial committee.  This is a case, your Honours, in our submission, where the observation made by members of the Court, particularly I think your Honour Justice Hayne, in Crampton v The Queen (2001) 206 CLR 161 are germane. That was the case, of course, in which the Court decided that it had power to entertain for the first time a new point when the matter came to this Court but could I say, your Honours, if one goes first ‑ ‑ ‑

KIRBY J:   I think that had been discussed earlier in Gipp.

MR JACKSON:   Yes, your Honour, there had been a number of cases in which the issue had not been finally resolved, as it were, but, your Honours, could I go first of all, and I will do so briefly, to page 171, paragraph 10.  Your Honour the Chief Justice stated the general principle that power should be exercised only in exceptional circumstances.  Page 185, paragraph 57, Justices Gaudron, Gummow and Callinan “do that” ‑ power should be exercised rarely:

should be exercised to cure a substantial and grave injustice.

and your Honour Justice Hayne at page 217.  The relevant passages, your Honours, are paragraphs 157 to and including paragraph 160.  Could I refer in passing to a number of observations of your Honour.  The first is in the first half, as it were, of paragraph 157:

The importance of trial cannot be emphasised too strongly.

That goes about halfway through that paragraph.  Then, your Honours, paragraph 158, the reference to Ratten v The Queen and particularly in Chief Justice Barwick’s observations, the first six or seven lines and then the last three lines.  Then, your Honours, the whole of paragraphs 159 and 160.

Now, your Honours, this is a case where the way in which the case was to be conducted on behalf of the accused was chosen and deliberately chosen.  One can understand why it was done, why points that were thought to be trivial brushed to the side but, of course, and in a sense it worked the first time, the first trial, as a disagreement.  The second time it did not but, your Honours, it is not a case where, in our submission, the issue is one that would merit being dealt with by this Court.

Could I say, your Honours, one final thing in relation to the question of “witness”.  If I could come back to the Magistrates Act for a moment, our learned friends have referred to the judicial committee, and they say, well, it is an ad hoc body.  If one looks at section 10A, it says that the “judicial committee . . . is established”.  Now, in section 10C, it says: 

The members of the committee for each review are—

and then it nominates the persons.  Now, your Honours, no doubt the membership of the committee changes from time to time, but there is no reason, in our submission, why the institution of the judicial committee, as a legal concept, does not remain. 

The situation, in at least practical terms, is no different from that which would obtain, in terms of the composition of it, from a case, if one were in the Court of Appeal of one of the States or appearing in the Full Court of a Federal Court, where, until perhaps the day before the morning of the case, one did not know who the judge was to be.  The judge may not have been appointed at the time when affidavits were filed.  Commonly, your Honours, one would see situations where a judge who perhaps is sworn in today might be hearing tomorrow a case in which the material has already been placed before the court as part of the material upon which the court is to act. 

That is what we wanted to say about ground 3.  Could I move then, to the remaining grounds, and if I may – your Honours, I do not intend simply to go through our written submissions word by word.  May I say a number of things in relation to these grounds.  Could I turn first to grounds 1 and 2, which deal with the question of “without reasonable cause”.  I do intend to refer to our written submissions, and the particular passages to which I refer at the moment commence at paragraph 14. 

Your Honours, the term “without reasonable cause” used in section 119B is a provision which, as we submit in paragraph 15, is one which relates to the remaining parts of the provision.  The conduct has to be that of a person who, without reasonable cause, threatens to cause detriment to a witness “in retaliation because of”.  So one looks at “without reasonable cause” in relation to the provision, which gains meaning from the terms which follow.  That is the first thing, your Honours.

The second thing is that, as we submit in paragraphs 17, 18 and 19, the judge made it clear that the test to be applied was one which was objective.  In relation to it, in the passages to which we have referred in paragraph 17 and also paragraph 19 – your Honours have been taken to both those this morning – it was made clear that the judge was dealing with the cases that had been made out by the parties. 

Your Honour Justice McHugh this morning said that – I think I am more or less correct, your Honour – that your Honour said in effect the first question was, “Did she in fact not have confidence in Mr Gribbin and if so was that reasonable cause?”  Your Honours, to the extent to which the matter was raised in that way it was certainly put in the passages to which I have referred.

McHUGH J:   The problem I see at the moment, Mr Jackson, is this.  The question of retaliation is something that stands independently of reasonable cause for the purposes of the section.  Now, it is possible in some cases that the retaliation itself might destroy any notion of reasonable cause, but here the retaliation was the calling on the witness to show cause why he should not be removed.  That was the retaliation.  The question was did she have reasonable cause for doing that?  Now, she may have had a vendetta against him, but she may still have had reasonable cause.  Reasonable cause and an intention to pursue some private matter are not necessarily inconsistent, but the judge never dealt with it at any stage.

MR JACKSON:   Well, your Honour, that is, with respect, not correct.  What one had was a situation where what was being – the case that was being put for the Crown was that this was a case where what was being done was in retaliation of course and there was no reasonable cause for doing it.  Now, that was - and I will just give your Honours if I can find the reference to it – could I take your Honours to paragraph 47 of our written submissions for just a moment because this, whilst dealing with another head, really deals with this issue.  I refer to the fifth line of that.

Your Honours, the prosecution case was that the only reason the email was sent was because of the action in supplying an affidavit which she said was critical.  Now, your Honours, we give the references there.  That was made plain during the opening, plain in the closing address, plain in cross‑examination of her.

McHUGH J:   But never put by the judge.

MR JACKSON:   Yes it was, your Honour.

McHUGH J:   Where, Mr Jackson?

MR JACKSON:   It is page 456, your Honour.  It is at the bottom of the page.  It starts off with a reference to credibility and then at the bottom of the page:

She submitted that the provision of the affidavit and its contents was the real reason for sending the e-mail, and any reference to the agenda item or the interference with the agenda item was mere camouflage.  So what really happened . . . was that indeed this e‑mail was sent in retaliation and without reasonable cause.

McHUGH J:   That runs the two together; that is part of the problem.

MR JACKSON:   The two are not entirely separate.  It says “in retaliation and without reasonable cause”.  Your Honours will see the next paragraph of the summing up also.

McHUGH J:   Yes, but even accepting what you say, the trial judge does not put her case.  Her case is this man has lost – “I don’t have this man’s confidence.  That’s why I want to remove him as a co‑ordinating magistrate”.  Her case was never put.

MR JACKSON:   Your Honour, page 448 in the first paragraph on the page ‑ ‑ ‑

McHUGH J:   No, the judge says there was a difficulty and that could constitute reasonable cause.  That is not her case.  That does not really put what her case was.  Unless the jury were convinced beyond reasonable doubt that she did not have confidence in this man by reason of his lack of confidence in her, I do not see how any jury could possibly convict her.

MR JACKSON:   Your Honour, could I just say if you go to pages 460 and 461, the case that the jury was considering was the one that was raised in effect as, if I could put it this way, her case.  Your Honours will see then at page 460, about line 7:

I come now to a brief summary of Mr Hanson’s submissions.

Then at the top of page 461:

the element of the absence of reasonable cause.

Your Honour will see that is very close, with respect, to what your Honour has been putting to me, but that was the way in which the case was put to the jury.  Then your Honours will see at the bottom of 461, line 20, he turns then to “On the question of retaliation”.  The judge separated them out.

McHUGH J:   Yes, I know, but one of the problems I have with the summing in many parts of it is that the judge is repeating arguments of counsel which do not necessarily describe what is the true issue in the case according to law.

MR JACKSON:   If that were so, then a very good time to take objection to it was at the end of the summing up.  If it be that more mature consideration suggested that that was erroneous, then one sees an appeal to the Court of Appeal.  When one looks at the notice of appeal at page 471 to the Court of Appeal, there is one ground:

No reasonable jury could have found beyond reasonable doubt an absence of reasonable cause.

So one has got to that point, notice of appeal.  Then you have a hearing in the Court of Appeal and in the Court of Appeal what your Honours will see is further consideration no doubt being given to what is going to be advanced and you get then paragraph (4) in the summary at page 474, “The sole ground argued”.  Then when you come to the actual judgment of the court which commences at page 475, one sees at paragraph [9] on page 478 the sole ground of the appeal.  So, in our submission, it was a case where first of all the summing up was ‑ ‑ ‑

KIRBY J:   There does seem to have been some elision between the reasonable excuse issue and the classification of her real reason.  In a sense, they were rolled up.  They were certainly connected.  She was saying the real reason was “I had lost confidence in him and I was entitled to and did act in relation to him”.  The Crown was saying that is not the real reason.  “The real reason was you were retaliating against him and turning his lights out and showing an inappropriate response to the fact that he had given witness evidence”.

MR JACKSON:   And your Honour, one needs ‑ ‑ ‑

KIRBY J:   And that was a jury question, to classify it.

McHUGH J:   But it was not, was it?  It assumes that a dichotomy exists.  Both conditions could have existed.  What was required here was for the Crown to prove beyond reasonable doubt that whatever other motives she might have, she did not have as her cause for doing this lack of confidence in him.  Now, she may have hated him, and she may have thought to herself, “This is a great opportunity to get square with this guy”, but if the reason she did it was because she genuinely believed that he did not have any confidence in her and he had to go, then how could it be a criminal offence?

MR JACKSON:   Well, your Honour, could I just say this.  The case was conducted on the basis that there was no reasonable cause and that whatever causes were assigned were camouflaged.  That was the case that was absolutely made clear.  She gave evidence; she was obviously disbelieved by the jury.

McHUGH J:   She may have been, but where is the evidence on the Crown?  The Crown may have rejected her evidence.  I mean, I really am puzzled by this case. 

MR JACKSON:   Well, your Honour ‑ ‑ ‑

McHUGH J:   I would have thought it was as clear as it could possibly be that for whatever reason she had lost his confidence and she wanted him to go, and I just for the moment cannot see how anybody could come to the conclusion that that was not the reason that she did it.  She might have had all sorts of other reasons.

MR JACKSON:   Well, if one looks at the evidence which was given by the large number of magistrates who were called, who had attended the meeting of co‑ordinating magistrates, what one sees from that is that the version that she gave to them was that she wanted to get rid of Basil from the office, to put it shortly, because he had given the affidavit.  This was not a weak case, with respect, your Honour.  The way in which your Honour puts it to me makes it sound as though it was.  It was very strong.

McHUGH J:   It strikes me as a fairly weak case.

MR JACKSON:   Well, your Honour, may I ‑ ‑ ‑

KIRBY J:   It did not strike the Court of Appeal.

MR JACKSON:   I do not want to enter argument with your Honour, but ‑ ‑ ‑

McHUGH J:   No, there is no point in debating it.

MR JACKSON:   The fact of the matter is, if one looks at the evidence of those magistrates, there is almost a uniform view – certainly one on which a jury was entitled to act – that she had said to them she wanted to get rid of Basil because he had given the affidavit.  So the jury is perfectly entitled to act on that.  I am putting it shortly, but that is the essence of it.  One sees that evidence being given.  One sees a situation where she elects to give evidence and she is asked about these matters and the jury obviously did not believe her. 

Now, your Honours, there is no particular reason in circumstances like that where the issues are made pretty clear – and if I could come back to what your Honour Justice Kirby put to me a moment ago in just a moment and separate it out – that the jury could not arrive at that conclusion. 

May I come back, your Honours, to what Justice Kirby put to me about there being some elision.  Obviously, there is some conceptual relationship between retaliation and “without reasonable cause”.  We have dealt with that now in our written submissions, but may I say also, this is a case where there were two counts, one of which involved intent, the other of which did not.  Without going through the summing up in detail, what we would say is that if your Honours look at the passages to which we have referred in our written submissions in paragraphs 17, 18 and 19, one sees that the judge made perfectly clear to the jury what the issues were on each of these matters and made it clear that questions of intent as such were germane to the second count, not this one. 

Your Honours, so far as our submissions are concerned on that ground of appeal, I rely on our written submissions.  Could I come then to notice of appeal ground 4, which is dealt with in our written submissions in paragraphs 40 to 42.  This involves the theory that it was not a threat, in terms of section 119B, because it did not say, “You are out”.  It said, “You will be out if you cannot satisfy me otherwise in seven days”.  Now, this element, as we note in paragraph 41, not in dispute at the trial – we give the references – not an issue in the Court of Appeal, and, as we submit in paragraph 42, we would submit the argument is completely unreal.  I do not think I need to add to that. 

Your Honours, ground 5, which is dealt with in our written submissions in ‑ ‑ ‑

KIRBY J:   That last point I do not think was orally argued, was it?

MR JACKSON:   No.  Ground 5, paragraph 43, says that “because of” in section 119B means that it has to be the sole requirement.  Your Honours, I do not think I need to add anything to our written submissions in that regard, but we would invite your Honours particularly to note the passages to which we have referred in Royall v The Queen in paragraph 46.  Could I also just say one thing, and that is the matter referred to in paragraph 47, that even if the proposition about the meaning of “because of” is right, the judge’s summing up was on the basis that only one cause was suggested, and your Honours will see that in paragraphs 47 and 48.

Your Honours, that brings me I think to ground 6, the question of calling Mr Searles.  We have set out in our written submissions in paragraphs 49 to 55 what we would say about that.  I said, your Honours, that Mr Searles – the question whether he should be a witness was raised in a pre‑trial hearing.  The judge declined to give such an intimation.  His ruling, your Honours, is at page 62, lines 4 to 34.

HAYNE J:   Did the prosecutor at trial ever indicate a reason for not calling Searles as a witness for the prosecution?

MR JACKSON:   Your Honour, I do not have the precise passage.  The passage I just referred to was the judge’s actual ruling.

HAYNE J:   Yes.

MR JACKSON:   There was some discussion before that.  What was said to the judge was that it was in the interests of justice that he be cross‑examined rather than examined. 

HAYNE J:   That is ordinarily a statement that would not be to the advantage of the witness, I would have thought.

MR JACKSON:   Your Honour, if one is looking at the question of a miscarriage ‑ ‑ ‑

HAYNE J:   I understand separate issues arise.  I well understand that, but I do say that statements of that kind are not to be bandied about by prosecuting counsel. 

MR JACKSON:   I accept what your Honour says, but, your Honour, if one looks at the transcript of what took place, one does not see it being done as a particularly frivolous thing or something simply designed to gain some advantage and, your Honours, the point we make particularly about it, about paragraph 52 of our written submissions, that the evidence of Mr Searles did tend to diminish some assertions favourable to the appellant that were already in the Crown case.

KIRBY J:   I read that, but the accused is in a much better position if she can cross – examine Mr Searles than if she has to extract it in‑chief.

MR JACKSON:   Your Honour, could I say this, that Mr Searles’ evidence was in fact given.  No one suggested that he was dishonest.  No one suggested his evidence might be different in the end, depending on who called him, and, in our submission, it was a case where, as the evidence emerged, it could not have been, we would submit, a miscarriage for the Crown not to have called.

KIRBY J:   That may well be true, and the authority of the Court is pretty strongly against intervention, and respecting the role of the Executive Government and the Crown in presenting cases, but it is just a source of some concern if there is a gradual erosion of the feeling in the area of the Crown’s prosecutions, that it can just decide these matters for itself, and courts can back off, because Apostilides does not authorise that in the end.

MR JACKSON:   I understand the point your Honour is putting to me.  May I say about it though, this, that very often, the court sees things, of course, in the words of transcripts and so on.  This was a case where, if there had been a point to be made about this issue, one would have thought something would have been asked of the judge in his summing up, or either before he did it, or after he had done it.

If it was thought that this was a point of any significance, one would have thought that it would have been raised in the Court of Appeal, and the Court has the disadvantage if it wishes, and I do not use the word in any offensive way, to make some fulminations about the practice.  It is a case where the Court does not have the advantage of any observations of the Court of Appeal on the issue.

McHUGH J:   That stimulates me to say this to you.  I find this summing up remarkable.  I do not know whether it is a standard summing up in Queensland, but nowhere in the summing up is there any summary by the judge of the evidence for the prosecution of the witnesses.  There is not any summary of the accused’s evidence.  In a major criminal trial, I have never seen a summing up like this before, and in all its – you get a statement of what the law is, a list of the names of witnesses, what the prosecutor says, what the defence counsel says.  I mean, the jury have no assistance.  Is this a standard model of summing up in Queensland?

MR JACKSON:   Well, your Honour ‑ ‑ ‑

McHUGH J:   I doubt if it would pass muster in some other States in the Courts of Criminal Appeal.

MR JACKSON:   Your Honour, I must say I have heard observations to the contrary expressed in this Court, with respect, in argument that some of the summings up go far too far into the evidence.  Could I just say ‑ ‑ ‑

KIRBY J:   They certainly do, in my opinion.

McHUGH J:   Well there is no – one can accept that, Mr Jackson, but one usually expects the jury to be reminded of what individual witnesses said or the evidence to be gathered on a particular point for the benefit of the jury and analysed by the judge and for the defence evidence to be put to the jury.

MR JACKSON:   Well, there is page ‑ ‑ ‑

McHUGH J:   I do not think you will find that anywhere here.  You find the general submissions of counsel and that is it.

MR JACKSON:   One could start at page 441, your Honour, at the bottom of the page where the judge says he would begin:

by reminding you of the witnesses.

Then he discusses the ‑ ‑ ‑

McHUGH J:   Yes, he describes - by name.

MR JACKSON:   And, your Honours, he lists the witnesses, says who they were, says what they were doing.  He speaks in the next paragraph at the bottom of page 442 about a good deal of evidence concerning discord about magistrates.  You will see he speaks about what took place on the next page.  Now, your Honours, could I just say ‑ ‑ ‑

KIRBY J:   Well, amongst all the added grounds that were never raised below we have not had a ground complaining about the balance of his Honour’s direction to the jury.

MR JACKSON:   No, and if at the trial the view were taken by counsel for either side that the cases - which must have been very fresh in the memory of the jury - had not been properly put, that is the time to say something about it, and no appeal on that ground in the Court of Appeal.

McHUGH J:   I appreciate that.  I find it worrying.  You said that we do not have the benefit of the Court of Appeal and I just raised that matter with you because it worries me.  It is a very short summing up.

MR JACKSON:   Your Honour, it is not a point taken in special leave.  When the Court granted special leave, all the grounds that were then thought to be allowed were allowed and were in.  This is a point no one previously has raised and, your Honours, it is not a ground in the notice of appeal. 

Your Honours, could I just add a couple of things.  Page 30 and 31 of the record sets out what was said at the pre‑trial hearing about calling Mr Searles.  That is the first thing.  The second thing is that I should have given your Honours a reference to part of the evidence of the appellant where her evidence was – page 258, I am sorry, in summing up to the jury the judge had to bear in mind what the evidence was, no doubt, but your Honours will see, for example, line 36, a representative answer, where she was asked:

Basil Gribbin hadn’t failed in relation to any of his duties as a Coordinating Magistrate, had he?—As I’ve said many times, no.

So there was not really any basis for saying there was reasonable cause in his conduct as co‑ordinating magistrate.

KIRBY J:   I suppose the point to the other side is that within a court you expect certain minimal standards of collegiality and co‑operation and respect for those who have the responsibility of assigning lists and making difficult decisions, and the sorts of decisions that the Chief Magistrate had to make here were undoubtedly difficult.  There would be a point where a Chief Magistrate would be entitled, one would think, to say, “Well, you don’t like what I’m doing and I’ve lost confidence.  You’ve got this responsibility.  I nominated you and I feel that you shouldn’t go on doing this because ‑ ‑ ‑

MR JACKSON:   Your Honour, what she kept saying was, “He wasn’t loyal to me”; the loyalty, as the jury found, being demonstrated by the fact that he gave a pretty mild affidavit in support of another magistrate.

Your Honour, this is in answer to your Honour Justice Hayne earlier, how does the one justice, in section 104, become a magistrate and the answer is, in the definition provision of the Justices Act, in section 4, the definition of “justices” or “justice”, it means the justice:

having jurisdiction where the act in question is, or is to be, performed and includes a stipendiary magistrate, and, where necessary, a Magistrates Court.

HAYNE J:   Perhaps if those instructing you could supply us with a copy of the relevant definitions after the Court rises, that would help, Mr Jackson.

GUMMOW J:   We start at section 19 at the moment, I think.

MR JACKSON:   Your Honours, could I also refer to section 22A of the Justices Act which says that Magistrates Courts are to have the civil, criminal and other jurisdiction that:

Courts of Petty Sessions or justices sitting in Petty Sessions had before the commencement of the Justices Acts Amendment Act 1964; and

(b)      that is conferred on them by this Act and other Acts.

KIRBY J:   Can I just have a bit of help on this reasonable cause.  I know that you and Mr Walker agree it is objective, but at least, as it were, standing back from this case, it does not - one view is that what happened was a dispute within an institution, but it seems a bit difficult to see it as a case with the criminal intent.  That is why I am concerned that everybody is agreeing that the test is objective, but if you look at the question in terms of the objective intention of the appellant, it seems pretty hard to think that in sending her email she was intending to prevent him from giving his evidence, because he had already sent the evidence in.

MR JACKSON:   Your Honour, she ‑ ‑ ‑

KIRBY J:   Why is it objective, as distinct from, why is the inquiry not into whether in her mind she had a reasonable excuse, as distinct from whether - because it is embarrassing to the jury to try to work out what the reasonable excuse is in the context of what a magistrate, a Chief Magistrate does in the constitution of the offices within the court.  If their inquiry is what did she intend, well, that is a different matter, and I find it quite difficult to think that she actually intended a criminal act.

MR JACKSON:   Well, if I could take your Honour to the words of section 119B.  One does have the words: 

in retaliation because of . . . anything lawfully done by the . . . witness in any judicial proceeding –

So something is being done and something is done in retaliation because of that.  What is done is – and if one leaves the words “without reasonable cause” out for the moment – it simply says that:

A person who . . . threatens to cause, any . . . detriment to a . . . witness . . . in retaliation because of . . . anything lawfully done by the . . . witness in any judicial proceeding –

is guilty of a crime.  It does not involve intent.  What it involves is the question whether there is a threat made in retaliation because of certain matters.  Now, there may, of course, be reasons for doing it.  The question is whether those reasons amount to reasonable cause.  In our submission, when one comes to reasonable cause, the cause is something that has to be objectively reasonable.  If one is dealing with the Code, of course, there are provisions dealing with criminal responsibility in Chapter 5.

KIRBY J:   Do they throw any light?  Because the last words of the section are “is guilty of a crime” and you are therefore defining the constituent elements of a crime.  It is the golden thread of our criminal law that you are not just looking at acts, you are looking at what people intend. 

MR JACKSON:   Your Honour, you are looking at a Criminal Code and it defines what the offences are and one sees in section 23 circumstances in which a person is not criminally responsible, and it is the two categories in 23(1)(a), 23(1)(b).  Your Honours, could I refer to 23(2) which says:

Unless the intention . . . is expressly declared to be an element of the offence . . . the result intended to be caused . . . is immaterial.

You have, your Honours ‑ if I could just notice in passing ‑ section 23(3).  Our learned friends have relied on that.  Could I just say there was no reference to motive in the summing up by the judge.  There is a passing reference in the Court of Appeal.  The judge said nothing about motive, but what section 23(3) means is that one does not have to have motive to be criminally responsible.  It does not mean motive is irrelevant to the question whether someone is guilty.  Take the simple case of murder, the presence of evidence is admissible about motive.

So, your Honours, in our submission, it is just not a case where there is any question of intention involved.  The other count was one that did.  Your Honour, I do not know that I could take it beyond that.  Your Honours, those are our submissions.

GLEESON CJ:   Mr Walker, how long do you expect to be approximately?

MR WALKER:   Between 15 and 20 minutes, your Honour.

GLEESON CJ:   There is another matter listed at 10.15 tomorrow morning which is being dealt with in Court No 2 by video link with Adelaide.  I am not sure how long that might take.  It might well be finished by 10.30, but we will list this matter to follow that matter and say that this matter will not be taken before 10.30 tomorrow morning.

MR WALKER:   In this Court, your Honour?

GLEESON CJ:   In this Court.

MR WALKER:   May it please your Honours.

MR JACKSON:   Would your Honours excuse me if I am not able to be here tomorrow?

GLEESON CJ:   Yes, certainly.  We will adjourn until 10.15 tomorrow in Court No 2, and this matter will be taken in this Court tomorrow following that other matter at not before 10.30.

AT 4.19 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 2 FEBRUARY 2005