Foord, J.M. v Whiddett, A.m
[1985] FCA 179
•14 MAY 1985
FOORD v. WHIDDETT (1985) 6 FCR 475
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.(1)
CATCHWORDS
Administrative Law - Judicial review - Finding by magistrate of a prima facie case - Offence of attempting to pervert the course of justice - Nature and content of offence - Requirement of "risk" or "possibility" that injustice might result - discretion to review in criminal proceedings - Meaning of "judicial power" of the Commonwealth - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 16 - Crimes Act 1914 (Cth), s.43 - Judiciary Act 1903 (Cth), s.68 - Justices Act 1902 (NSW), s.41.
HEADNOTE
The applicant, a judge, was charged under s.43 of the Crimes Act 1914 (the Act) with attempting to pervert the course of justice, by attempting to influence the course of committal proceedings. He sought review of the decision by the second respondent magistrate hearing the committal proceedings against him that a prima facie case had been established on two grounds:
(i) that there was no evidence on which a prima facie case could be found.
(ii) that no offence was committed "in relation to the judicial power of the Commonwealth".
The court reviewed the evidence on which the respondent's finding was based, taking it as correct for the purposes of the first ground, and reviewed the authorities on attempting to pervert the course of justice, emphasising that the offence required intention and a tendency to result in injustice, but not necessarily the achievement of actual injustice.
R. v. Vreones (1891) 1 QB 360; R. v. Andrews (1973) QB 422; R. v. Kellett (1976) QB 372; R. v. Machin (1980) 1 WLR 763; R. v. Selvage (1982) QB 372; R. v. Murray (1982) 1 WLR 475, referred to.
The court also referred to the reluctance of courts to interrupt the conduct of criminal proceedings by providing declaratory relief or review, especially where a detailed consideration of the evidence is required. However, in the absence of any argument by the respondent on discretion in relation to the second ground, the court felt reluctantly constrained to exercise a discretion in relation to both grounds and to consider the substance of the applicant's argument.
Held (1) (refusing review on the first ground) that there was a possibility or risk that the alleged conduct of the applicant in speaking to the Chief Stipendiary Magistrate with the intention that the latter should divert another magistrate, namely the magistrate hearing the relevant committal proceedings, from his duty rather than speaking to that other magistrate himself, might lead to injustice.
(2) (refusing review on the second ground) that the "judicial power" of the Commonwealth as referred to in s.43 of the Act extends beyond the processes of adjudication to embrace, inter alia, the administrative functions of a magistrate in committal proceedings. It did not follow from the extended definition of the expression "judicial proceeding" in the Act (which included any proceeding in which evidence may be taken on oath) that the expression "judicial power" in s.43 of the Act should be narrowly construed to mean a judicial proceeding stricto sensu.
Lamb v. Moss (1983) 49 ALR 533; Sankey v. Whitlam (1978) 142 CLR 1; Ammann v. Wegener (1972) 129 CLR 415; R. v. Selvage (supra); R. v. Bailey (1956) NI 15; R. v. Kane (1967) NZLR 60; Victoria v. The Commonwealth (1971) 122 CLR 353, referred to.
HEARING
Sydney, 1985, May 1, 6-7, 14. #DATE 14:5:1985
APPLICATION
Application for orders of review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) of a decision of the second respondent, a magistrate, who found a prima facie case in relation to a charge under s.43 of the Crimes Act 1914 (Cth).
J Pritchard QC, R C P Mater and G W Osborne, for the applicant.
N R Cowdrey, for the first respondent.
J Elliston, for the second respondent.
Cur adv vult
Solicitors for the applicant: Steve Masselos & Co.
Solicitors for the first respondent: Director of Public Prosecutions.
Solicitors for the second respondent: Crown Solicitor.
GFV
JUDGE1
14 May 1985
SHEPPARD J. This is an application for judicial review made pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The decision, review of which is sought, is the decision of the second respondent, a magistrate, who has found a prima facie case against the applicant of attempting to pervert the course of justice. The applicant was charged with two offences under s.43 of the Crimes Act 1914 (Cth). The section provides:
"43. Any person who attempts, in any way not specially defined in this Act, to obstruct, prevent, pervert, or defeat, the course of justice in relation to the judicial power of the Commonwealth, shall be guilty of an offence.
Penalty: Imprisonment for two years."
One of the offences charged related to alleged conduct of the applicant in approaching the then Chief Stipendiary Magistrate, Mr Briese, in relation to committal proceedings pending against one Morgan John Ryan. The proceedings were being heard by another magistrate, Mr Jones, who has since died. At the time of the events said to constitute the offence, 1 or 2 March 1982, Mr Jones had found a prima facie case against Mr Ryan but had not decided whether to commit him for trial.
The other offence with which the applicant has been charged relates to alleged conduct of the applicant in approaching his Honour, Judge Flannery, of the New South Wales District Court, in the course of the trial of Mr Ryan held in consequence of Mr Jones eventual committal of him. In this Court there is no challenge to the respondent's decision to find a prima facie case on that charge. It is unnecessary to refer to it again.
The grounds upon which the applicant seeks the review of the second respondent's decision to find a prima facie case on the charge involving his approach to Mr Briese are:
1. That there was no evidence upon which a prima facie case could be found.
2. That the offence was not committed "in relation to the judicial power of the Commonwealth".
Counsel for the first respondent disputes the validity of these two grounds. Additionally, he submitted that, in relation to the first ground, relief should be refused on discretionary grounds. He did not make this submission in relation to the second ground.
The jurisdiction of this Court to review a magistrate's decision in the circumstances of a case such as this is established by the decision in Lamb v. Moss (1983) 49 ALR 533. The relevant enactment under which the decision is made is s.68 of the Judiciary Act 1903 (Cth) which, in federal matters, picks up and applies the provisions of s.41 of the Justices Act 1902 (NSW) in relation to committal proceedings. That section has undergone recent amendment, but senior counsel for the applicant agreed that the terms of the amending legislation were not of importance in this case. The two grounds would have been available under the earlier form of the section as well as under the section in its present form.
The evidence upon which the first respondent relies is in short compass. At the material time the applicant was (and still is) a judge of the District Court of New South Wales. Mr Briese was the Chief Stipendiary Magistrate; Mr Jones was a magistrate. Both were members of the Public Service. Mr Briese was Mr Jones' superior. In this capacity he assigned him the cases he was to hear and the places at which he was to sit. He had, of course, no authority to control or supervise him in his task of deciding cases.
In his evidence before the second respondent, Mr Briese said that in the week commencing 22 February 1982 he was aware that Mr Jones had held that a prima facie case had been established against Mr Ryan in relation to certain offences charged pursuant to the Crimes Act 1914. In that week Mr Briese said that he received a telephone call from the applicant. The call was from a place away from Sydney; Mr Briese heard the STD pips. The call was from the applicant who was at Broken Hill. Mr Briese said that the applicant said, "I've got a delicate matter I'd like to see you about". The applicant said that he would be back in Sydney next week and would ring Mr Briese then. He gave no indication of what he wished to speak to Mr Briese about.
Mr Briese said that he next heard from the applicant on the Monday or Tuesday of the following week, that is, 1 or 2 March 1982. He said that he was in his chambers. The applicant rang him again and Mr Briese asked where he would like to meet. Tattersall's Club was suggested and agreed upon. The meeting took place either that day or the following day. The two met outside the club and went to the bar on the first floor. Drinks were ordered. As the two were approaching a table, Mr Briese said that the applicant said to him, "Neville wants something done for Morgan Ryan". The two sat down. The applicant said, "I don't know the magistrate who is hearing the case, that's Kevin Jones. If it was one of the old Central Magistrates that I used to know in the past I could go and speak with him myself."
Mr Briese's evidence continued:
"Q. What did you reply? A. I said: 'Well I think there is something that you and the Premier should both know, it so happens that the Magistrate who was allocated in this case, and I didn't allocate him, is the same Magistrate who did the Humphries case'.
Q. Yes? A. 'And nobody should go, should approach the magistrate in my view'. I said: "Magistrates are still talking about what is alleged to have taken place in that case.
Q. Did you say what it was that was alleged to have taken place?
A. Yes.
Q. What did you say? A. I did very briefly I believe. I said: 'What is alleged to have happened is that the Premier rang Murray Farquhar and he leaned on Jones and the case against Humphries was dismissed.'
Q. Did you indicate whereabouts you were at that time? A. Yes I said: 'I have no direct knowledge of the case because I was overseas at the time.' However I said that from what I have heard from some of Mr Jones's colleagues he suffered a great deal as a result of that case. And I believe I said something to the effect, 'He is not going to be caught like that again'.
Q. Did the defendant make any reply or comment following on that conversation by you? A. He said: 'I can see that it could be counter-productive to see Jones. I think my advice should be to get McHugh to address on the evidence.'
Q. What did you say? A. And I said: 'That's right, that's the way to do it.'
Q. And when you said, 'That's right that's the way to do it', you meant what? A. I meant that that would be a proper way of the matter being dealt with before Mr Jones. And that was namely for senior counsel-."
The witness was interrupted by an objection by counsel for the applicant. The objection was overruled and Mr Briese's evidence proceeded:
"Q. Would you please explain what you did mean, what you understood was being proposed and what you were agreeing to? A. Yes, that a proper procedure would be to have senior counsel examine the evidence and address on the evidence to argue that the matter not proceed to a trial.
Q. What caused you to understand that senior counsel was being proposed? A. The name McHugh, and that referred to now Mr Justice McHugh, who was -
Q. - was then senior counsel? A. Was then senior counsel. That's Michael McHugh I should say.
Q. Now following on that comment was there any further conversation about other matters which were not connected with the Morgan Ryan case? A. Yes there were one or two other matters which we talked about.
Q. Can you recall what they were? A. No I don't remember all of them but I do know that we spoke about representation for Morgan Ryan.
Q. Yes, and in particular relating to any person? A. Yes, to Bruce Miles who had been appearing for Morgan Ryan.
Q. Well did the defendant say anything in relation to that representation?
A. Yes, he said words to the effect, 'I think Morgan Ryan would have been better served to have had senior counsel from the outset', and I made some comment like 'Well I think you are probably right there'.
Q. Well now does that cover the totality of the conversation that you had in relation to the Morgan Ryan case? A. Yes."
Mr Briese said the conversation lasted for about twenty minutes.
It is common ground that the reference to "Neville" was understood by the two to be a reference to the Premier of New South Wales and that the reference to Mr McHugh was a reference to Mr Justice McHugh who was then Mr McHugh QC of the New South Wales Bar. The reference to Murray Farquhar was a reference to the former Chief Stipendiary Magistrate who, in other proceedings, was alleged to have spoken to Mr Jones concerning committal proceedings which Mr Jones was to hear and which involved a Mr Humphries. It is perhaps unnecessary to add that the fact that Mr Briese said in his evidence that the applicant had said that it was the Premier who wanted "something done for Mr Ryan", or that Mr Briese himself had said that what was alleged to have happened was that the Premier had rung Mr Farquhar "and he leaned on Jones", provides no evidence that the Premier himself made any such request either to the applicant or Mr Farquhar.
Mr Briese was cross-examined, but there is no part of the cross-examination relevant to the outcome of the present application.
The evidence to which I have referred is the evidence upon which the prosecution relies to make out the charge which is in question here. For the purpose of determining whether the magistrate was justified in holding that there was a prima facie case, I propose to proceed upon the basis that Mr Briese's evidence will ultimately be accepted by a jury at its face value and that the words attributed to the applicant are capable of the interpretation that he was asking Mr Briese to speak to Mr Jones in order to persuade him to divert from his proper judicial task to the advantage of Mr Ryan. I should say at this point that the applicant does not concede the accuracy of Mr Briese's evidence, nor does he concede that it had, or was capable of having, the meaning upon which the prosecution relies. But for the purpose of determining whether there was evidence of a prima facie case, Mr Briese's evidence should be taken at its highest from the prosecution's point of view. Senior counsel for the applicant agreed that this was the correct approach to adopt. I make it clear that nothing I have said, and nothing I do in this case, is determinative of the correctness or otherwise of Mr Briese's evidence, or of the meaning of his words. Those matters will be for the judge and jury at any trial of the applicant and, perhaps also, to a degree, for the second respondent when he comes to the question of whether he should commit the applicant for trial.
The offence of attempting to pervert the course of public justice is in many jurisdictions a common law misdemeanour. That is so in the United Kingdom and in New South Wales. Other jurisdictions make statutory provision for the offence. Section 43 of the Crimes Act 1914 and a number of the other sections in Pt III of the Act in which it appears were taken from the Criminal Code Act 1899 (Q); see particularly s.140.
There are a number of authorities in England as to the ingredients of the common law misdemeanour of attempting to pervert the course of justice. Because the offence here is a statutory one, those authorities are not necessarily of direct relevance, but I think that they are helpful and provide guidance as to what s.43 involves. It should be noted that in none of the authorities was the conduct of a judicial officer the subject of an alleged offence, so that there is no precise guidance in relation to a case such as this. There is, so far as I am aware, no Australian authority on the section or upon the corresponding provision of the Queensland Code. And, except for White v. The King (1906) 4 CLR 152 which is not directly in point, there is only scant Australian authority upon the common law misdemeanour which there is in New South Wales.
The first authority to which I refer is R. v. Vreones (1891) 1 QB 360. There the accused had substituted for a sample of wheat taken for the purposes of an arbitration, different wheat in order that when it was tested it would falsely show that the bulk of the cargo was of good quality. In the course of his judgment Lord Coleridge C.J. said (at 366-368):
"The first count of the indictment in substance charges the defendant with the misdemeanour of attempting, by the manufacture of false evidence, to mislead a judicial tribunal which might come into existence. If the act itself of the defendant was completed, I cannot doubt that to manufacture false evidence for the purpose of misleading a judicial tribunal is a misdemeanour. Here, in point of fact, no tribunal was misled, because the piece of evidence was not used; but I am of opinion that that fact makes no difference; it is none the less a misdemeanour although the evidence was not used. All that the defendant could do to commit the offence he did . . . . He interfered with the perfection of the samples as samples, by making them shew a higher quality or condition of grain; and having done this in a most clever and fraudulent manner, without breaking the seals of the bags, the samples were transmitted to the Corn Trade Association in London, to be kept there, and used as evidence in the arbitration, in case an arbitration was held. They were not in fact so used; but I am of opinion that the defendant was none the less guilty of a punishable offence. I think that an attempt to pervert the course of justice is in itself a punishable misdemeanour; and though I should myself have thought so on the grounds of sense and reason, there is also plenty of authority to shew that it is a misdemeanour in point of law. There is, of course, no case in which the facts are exactly like these; but in R. v. Crossley 7 TR. 315 the principle which applies here was clearly laid down. The defendant in that case was charged with making a false affidavit. Lawrence J. pointed out that it would be absurd to make the guilt of the defendant depend upon the subsequent use of the false affidavit, the defendant being equally guilty of perjury though no use had been afterwards made of it. I agree that this case is not exactly the same. In R. v. Crossley when the false affidavit had been made, the defendant no doubt had completed the act which constituted the offence. Exactly the same principle applies here, because the offence of the defendant was completed, so far as his act could complete it, when he sent to London the samples which might or might not be used in the arbitration."
Pollock B said (369):
"The real offence here is the doing of some act which has a tendency and is intended to pervert the administration of public justice. The question is, whether the sending of these adulterated samples, which by previous arrangement were to be sent to the association in London to be used by the arbitrators, is such an act as I have described. I think that it was. I think that the arbitrators are to be considered as a tribunal administering public justice. Such a tribunal is one specially sanctioned by courts of law, and its decisions are enforced and carried out by the courts of law."
R. v. Vreones has been applied on many subsequent occasions. It is unnecessary to mention the detail of each of the cases in which this has occurred, but two applications of it which have general relevance to the present case are R. v. Andrews (1973) QB 422 and R. v. Kellett (1976) QB 372. In R. v. Rowell (1978) 1 WLR 132 the defendant made a false statement to the police implicating another person in a crime. He also placed false evidence (a toy pistol) in a bus. He was charged with attempting to pervert the course of justice. His counsel submitted that the indictment did not disclose a criminal offence. An appeal to the Court of Appeal against his conviction was dismissed. Ormrod L.J. delivered the judgment of the court. He said (at 138):
"The remaining grounds of appeal, namely duplicity in the indictment and the lack of sufficiently proximate acts to constitute an attempt, are both based, in our opinion, on the same false premise, which arises from the description of the offence as 'Attempting to pervert the course of public justice'. The use of the word 'attempt to this context is misleading. The defendant was not charged with an attempt to commit a substantive offence but with the substantive offence itself, which is more accurately, if less compendiously, described in Pollock B's words which we have already quoted, namely the doing of an act (or we would add a series of acts) which has a tendency and is intended to pervert the course of justice.
Lord Coleridge C.J. in R. v. Vreones (1891) 1 QB 360 at 367, said: 'I think that an attempt to pervert the course of justice is in itself a punishable misdemeanour . . . .'
Consequently, all the defendant's acts, his two false statements to the police accusing the man, described but not identified by name, of robbery, the placing of the toy pistol in the bus, and the arranging that it should be found by Cronin, are all part of a course of conduct, between the dates alleged, which had a tendency and, as the jury must have found, was intended to pervert the course of justice. That it did in fact cause a grave injustice to Timms who was wrongfully arrested and detained in custody for several days is beyond question. No question of duplicity in the indictment, therefore, arises."
In R. v. Machin (1980) 1 WLR 763 the appellant was charged with attempting to pervert the course of public justice in having fabricated evidence of a false allegation of assault by police officers on him and inciting others to give false evidence in relation to certain charges preferred against him. The judgment of the Court of Appeal was delivered by Eveleigh L.J. who, amongst other things, said (at 766-767):
"The law is concerned to forbid unlawful conduct which may result in a miscarriage of justice. There are specific common law offences such as embracery and personating a juryman. There are statutory offences, for example, the concealing of information for reward about an arrestable offence contrary to s.5(1) of the Criminal Law Act 1967. On the other hand, as is pointed out in the Law Commission Report on offences relating to interference with the course of justice (Law Com No 96), the common law recognises a wide general offence variously referred to as perverting or obstructing the course of justice, obstructing or interfering with the administration of justice, and defeating the due course, or the ends of justice. The particular acts or conduct in question may take many different forms including conduct that amounts in itself to some other criminal offence or attempt thereat in the strict sense of an inchoate offence. The gist of the offence is conduct which may lead and is intended to lead to a miscarriage of justice whether or not a miscarriage actually occurs. We therefore respectfully agree that the use of the word 'attempt' in the present context is misleading as was said in R. v. Rowell (1978) 1 WLR 132 at 138. The word is convenient for use in the case where it cannot be proved that the course of justice was actually perverted but it does no more than describe a substantive offence which consists of conduct which has tendency and is intended to pervert the course of justice. To do an act with the intention of perverting the course of justice is not of itself enough. The act must also have that tendency."
R. v. Selvage (1982) QB 372 was a case where no proceedings were imminent or in contemplation. Nevertheless, the appellant was charged with attempting to pervert the course of justice in that she had used her position as a clerical assistant to remove endorsements from another's driving licence. She was convicted of the offence but on appeal the convictions were quashed. Watkins L.J. said (at 381):
"The facts of that case (Vreones case, supra) are, in our view, as close to if not on the very boundary itself of the offence of perverting the course of justice. Nevertheless, it serves to provide one of the vital tests or principles which helps to determine whether or not a charge of perverting the course of justice is properly laid. This we take to be that a course of justice must have been embarked upon in the sense that proceedings of some kind are in being or are imminent or investigations which could or might bring proceedings about are in progress in order that the act complained about can be said to be one which has a tendency to pervert the course of justice.
It must follow therefore that the mere act of altering the records kept at the DVLC of endorsements on licences cannot by itself be said to be a perversion of the course of justice, a term with which the administration of justice is for present purposes synonymous."
In R. v. Murray (1982) 1 WLR 475 the appellant had provided a laboratory test specimen of his blood because he was suspected of driving a vehicle under the influence of alcohol. He was supplied with part of the sample so that he might have it independently checked. Before asking an analyst to analyse it, he tampered with it with the result that the analysis of his part of the specimen revealed a low alcohol content. He did not use the specimen in his defence of the proceedings. He was charged with attempting to pervert the course of public justice and convicted. His conviction was sustained on appeal. Lord Lane C.J. referred to a number of authorities including Rowell's case and Machin's case. He continued (at 479):
"So what the judge in the present case had to decide was, whether there was evidence which was fit to go before the jury, that first of all the appellant had the intention to pervert the course of justice, which plainly he did have, but much more importantly, whether there was evidence that what he did had a tendency to have that effect. In the view of this Court, there must be evidence that the appellant has done enough for there to be a risk, without further action by him, that injustice will result. In other words, there must be a possibility that what he has done 'without more' might lead to injustice. It seems to us that he does not himself have to introduce the evidence into the process of justice, as Mr Ognall invites us to rule. It is sufficient that what he has done 'without more' has a tendency to produce that result.
To establish a tendency or a possibility, you do not have to prove that the tendency or possibility in fact materialised. If it did, and if there is evidence of that, then of course that is powerful argument to show that there was a tendency; but it is not necessary. In our view, in the present case there plainly was evidence of such a tendency or possibility, because once the analyst - whether he was a private analyst or a public analyst - analysed this sample of blood and found that it contained a minimal quantity of alcohol, as in the particular circumstances of this case, it was a practical certainty, let alone a possibility, that that information would be communicated either to the solicitor or to the prosecuting authority, or to the police as indeed happened."
Senior counsel for the applicant accepted that these authorities provided guidance as to how s.43 of the Crimes Act 1914 should be construed and applied. He did not submit that there was no evidence of an intent on the part of the applicant to attempt to pervert the course of justice. What he submitted was that there was no evidence of a tendency arising from what the applicant said to Mr Briese to pervert the course of justice. As I understand the argument which was put it was based substantially, if not entirely, on the fact that Mr Briese was not the magistrate hearing the committal proceedings and upon the fact he declined to act upon the applicant's request. Reliance was also placed upon the applicant's own statement after Mr Briese had made his reaction clear that he, the applicant, thought that an approach would in any event be counter-productive. That would appear to be because of Mr Jones' previous experience in relation to the Humphries matter. An additional matter relied upon by counsel was that Mr Briese was not under any duty to communicate any request associated with the way in which Mr Jones would discharge his magisterial duties. In this respect reference was made to White's case to which I have earlier referred. I emphasise that the substantial matter upon which counsel relied was the absence of any communication to Mr Jones himself. Unless there were, there could not, in his submission, be any tendency to pervert the course of justice no matter what the applicant's intention was.
At this point I think it is important to have regard to the strong reliance placed by counsel for the first respondent on a submission that the court ought not, in the exercise of its discretion, entertain the application on this ground. The question of discretion was discussed in Lamb v. Moss (supra). There reference was made to what had been said about it in relation to the review of the decisions of magistrates in committal proceedings by a number of judges. In particular, reference was made to the judgment of the High Court in Sankey v. Whitlam (1978) 142 CLR 1. Gibbs A.C.J. (as he was) said (at 25-26):
"In any case in which a declaration can be and is sought on a question of evidence or procedure, the circumstances must be most exceptional to warrant the grant of relief . . . a court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order. Although these remarks may be no more than mere 'administrative cautions' (cf Ibeneweka v. Egbuna
((1964) 1 WLR 219 at 224) I nevertheless consider that if a judge failed to give proper weight to these matters it could not be said that he had properly exercised his discretion."
In the same case Stephen J. with whom Aickin J. agreed, said (at 80) that in many cases refusal of relief as an exercise of discretion may be called for so as to avoid interference with the due and orderly administration of the law and with the proper exercise by magistrates of their function in committal proceedings. Mason J. said (at 81-82):
". . . a plaintiff for declaratory relief in relation to committal proceedings needs to show some special reason why the court should grant the relief sought in lieu of allowing the committal proceedings to pursue their ordinary course . . . ."
Sankey v. Whitlam and other cases cited in Lamb v. Moss (49 ALR at 542- 546) were not cases under the Judicial Review Act. They were cases concerned either with applications for prerogative writs or for declarations of right. The court in Lamb v. Moss needed to consider whether s.16 of the Judicial Review Act required any different approach. The Court's conclusion was that the section did not require a different approach with the result that the considerations mentioned in Sankey v. Whitlam are as applicable to a case seeking the review, under the Judicial Review Act, of a decision made in the course of committal proceedings as they are to other similar applications made under the general law; see 49 ALR at 546-551. In some cases a distinction is drawn between the approach the court should take in relation to the exercise of its discretion in cases involving the review of decisions made in the course of committal proceedings and decisions which have involved the actual committal of accused persons. I would not myself have thought that very different considerations applied and that the same approach should be adopted in relation to discretion as regards those decisions also.
Since the decision in Lamb v. Moss (supra) there have been a number of applications to this Court in relation to committal proceedings. For the most part those applications have been made by accused persons, but in some cases they have been made by the Attorney-General, the Director of Public Prosecutions or an informant dissatisfied with a decision made by a magistrate. Recently, Wilcox J. in Wong v. Evans (1985) 4 FCR 228 referred to a number of these decisions and also to what had been said by Jenkinson J. in Seymour v. Attorney-General (1984) 57 ALR 68. It is convenient, in order to appreciate what the two judges have said, to quote the following passage from the judgment of Wilcox J. in the Wong case (15- 16):
"The principle in relation to the proper exercise of discretion applies both in relation to review of the conduct of incompleted proceedings - Sankey v. Whitlam (1978) 142 CLR 1 at 26, Lamb v. Moss (1983) 49 ALR 533 at 564, R. v. Iorlano (1983) 58 ALJR 22, Choo Cheng Kui v. Quinn (Full Court, 25 September 1984, not yet reported) - and in relation to review of the ultimate decision of the magistrate to commit - Clyne v. Director of Public Prosecutions (1984) 57 ALJR 493 at 494, 502, Seymour v. Attorney-General (1984) 57 ALR 68. The reasons for that principle were articulated by Jenkinson J. in Seymour at 71 of his judgment:
'Against the interest of the appellant in the result of the committal proceeding and in the conduct of that proceeding according to law must be weighed the public interest in the expeditious resolution of accusations of crime. The longer such an accusation remains unresolved the greater the risk of serious harm to the community. Those risks are multifarious: the fading of witness's recollections, the diminution of public confidence in the administration of the criminal law, the prolonging of fears and hatreds which the resolution of criminal charges tends to allay, and uncertainty as to the course which the life of the accused is to take, and not infrequently uncertainty as to the courses of other lives, are perhaps the more obvious and the most common. Those considerations of public interest are of great weight . . . .'
There may be cases where the considerations referred to by Jenkinson J. are outweighed by the desirability of a prompt and authoritative decision upon a question of law underlying the prosecution case, as, for example, the validity of the Banking (Foreign Exchange) Regulations (Cth) considered in Clyne, but that qualification has no application to a case where the Court is being invited, in the exercise of its power of review under the Administrative Decisions (Judicial Review) Act 1977, to examine the detail of the evidence already considered by the magistrate in determining the existence of a case sufficient to warrant a decision to commit for trial and which may be examined afresh by the trial judge in connection with any submission that there is no case proper to go to the jury."
In my opinion the authorities to which I have referred provide powerful reasons why the discretion in this case should be exercised adversely to the applicant. This is a case where, notwithstanding that the evidence in support of the charge is in short compass, the fundamental submission of senior counsel for the applicant necessarily involves an examination of the detail of the evidence already considered by the magistrate in determining the existence of a case sufficient to warrant a decision to commit for trial. If there is a trial, the evidence will be given again. It will not come out perhaps precisely as it has come out before the magistrate. It will then need to be considered by a trial judge in connection with any submission that there is no case proper to go to the jury. It is my opinion that it is highly undersirable for courts of civil jurisdiction to be asked to interfere, in the way that this application does, with the due processes of the criminal law and its administration. If there were no more to the case, I would have no hesitation in deciding that my discretion should be exercised adversely to the applicant with the result that the application would be dismissed.
But the problem is that the respondent has not relied - indeed has expressly refused to rely - on any discretionary argument in relation to the second ground. And the whole matter has been fully argued. In the light of those circumstances I think that I should go on to deal with the substance of the argument put on behalf of the applicant in support of the first ground, that is, that there was no evidence upon which the magistrate could find a prima facie case. I emphasise that I am taking this course with some hesitation and only because of the first respondent's attitude to discretion in relation to the second ground.
In my opinion it is established by the authorities to which I have referred that there must be evidence, arising from what the accused is alleged to have done, which discloses that there was a tendency to pervert the course of justice. That is made clear, particulary by Machin's case and Murray's case. But one has to understand what evidence will suffice in this respect. As Lord Lane C.J. said in Murray's case, one does not have to prove that the tendency materialised. Furthermore, no more is required than that the evidence must establish that the accused had done enough for there to be a risk, without further action by him, that injustice might result. Later his Lordship said, ". . . there must be a possibility that what he (the accused) has done . . . might lead to injustice".
As I have earlier said, the submission of senior counsel for the accused was founded upon the fact that no approach was ever made by anyone to Mr Jones who was hearing the committal proceedings. That, so counsel submitted, was fatal to the charge. I can find nothing in any of the authorities which would support such an argument. Most of them involved tampering with evidence or samples which might have been tendered in evidence, or threatening or interfering with witnesses. In some of the cases proceedings had not been commenced. As in many other fields of the law, I do not think it helps to look at factual situations. The question is one of principle and the application of that principle to the facts of the given case. Here the allegation is that the applicant spoke to Mr Briese with a view to persuading him to say something which was intended by the applicant to divert Mr Jones from his duty. He is alleged to have done so in circumstances where he, a District Court judge, was purporting to be conveying a request from the Premier. Upon the assumptions which, for the purpose of dealing with the argument, should be made, he was intending to exert upon Mr Briese the influence, not just of another citizen, but of the Premier and a judge.
It is true to say that the attempt to exert that influence failed at the outset when Mr Briese refused to do anything about the applicant's request and when the applicant appeared to accept that that was the better course to take. But what must be looked at is the applicant's conduct. In my opinion the offence was either committed or not committed when he finished what he had to say to Mr Briese. I find it inescapable that at that point of time, however momentary it was, there was the possibility or risk that what the applicant had asked might lead to injustice. Until Mr Briese's reaction to the applicant's words became manifest, the risk was there. I am, therefore, of opinion that the first ground relied upon by the applicant must fail.
I am confirmed in this conclusion by a reference to a number of American authorities which were relied upon by counsel for the first respondent. I do not deal with these in detail, but I mention United States v. Russell 255 US 138 (1921) and Osborne v. United States 385 US 323 (1966). Senior counsel for the applicant sought to distinguish these authorities because of the use in the United States legislation of the word "endeavour" rather than the word "attempt". He did so because in Russell's case the court used that circumstance to distinguish attempts to pervert the course of justice from attempts in the more conventional sense. The court said (at 143) that the use of the word "endeavour" in the section,
"got rid of the technicalities which might be urged as besetting the word 'attempt', and it describes any effort or essay to accomplish the evil purpose that the section was enacted to prevent".
In my opinion, counsel's attempt to distinguish the American cases on this basis discloses that he himself has fallen into the error referred to in the English authorities of equating an attempt to pervert the course of justice with an attempt to commit crimes of curious kinds which were themselves substantive offences. It will be recalled that in Rowell's case Ormrod L.J. said that the use of the word "attempt" in this context is misleading ((1978) 1 WLR 132 at 138). It follows that considerations of proximity such as were discussed in R. v. Eagleton (1854) 1 Dears CC 515; 169 ER 766 and in Director of Public Prosecutions v. Stonehouse (1978) AC 55 are not of relevance.
For the reasons I have given I would reject the first ground upon which the applicant relies.
The second ground raises for consideration the significance of the words "in relation to the judicial power of the Commonwealth" in s.43 of the Crimes Act 1914. For the offence to be committed there must be an attempt to pervert "the course of justice" in relation to that power. The starting point for the submission is the fact that the magistrate was not exercising judicial power. He was discharging an administrative function; see, inter alia, Ammann v. Wegener (1972) 129 CLR 415; Sankey v. Whitlam (supra) and Lamb v. Moss (supra, at 558-559) where the authorities are collected.
As I have earlier said, the offence may be committed notwithstanding that a charge has not been laid. Selvage's case showed the limits which there are to the ambit of the offence. But Watkins L.J., in the passage earlier quoted from his judgment ((1982) QB 372 at 381), made it clear that it was sufficient if proceedings were imminent or investigations which could or might bring proceedings about were in progress. I refer also to R. v. Bailey (1956) NI 15 where Lord MacDermott L.C.J. said (at 26) that the administration of public justice, particularly in the criminal sphere, cannot well be confined to the processes of adjudication. He continued:
"In point of principle we think it comprehends functions that nowadays belong, in practice almost exclusively, to the police, such as the investigation of offences and the arrest of suspected persons; and we see no good reason for regarding these preliminaries as beyond the scope of the category we are now considering."
In R. v. Kane (1967) NZLR 60 it was held that a person commits the crime of attempting to pervert the course of justice (which in New Zealand is a statutory offence), if, when a crime has occurred and the police are investigating it, he is guilty of conduct aimed at preventing or obstructing the prosecution which he contemplates may follow; see also R. v. Coneybear (1966) NZLR 52.
In Mr Ryan's case, at the time the applicant was alleged to have spoken to Mr Briese, charges had been laid and the committal proceedings had reached the stage where the magistrate, Mr Jones, had found a prima facie case. Upon the assumption that the prosecution's case must be taken at its highest for the purposes of the argument under consideration, what the applicant is alleged to have done is to have attempted to persuade Mr Briese to attempt to bring the committal proceedings to an end and thus to prevent, in due course of law, the judicial power of the Commonwealth arising which would occur when Mr Ryan was indicted and tried before a court which was exercising judicial power. The expression "in relation to" is an expression of wide import; see, inter alia, Victoria v. The Commonwealth (1971) 122 CLR 353 per Windeyer J. at 399. In my opinion a case of this kind clearly involves an attempt to pervert the course of justice in relation to the judicial power of the Commonwealth.
In reaching my conclusion I have taken into account the reliance which senior counsel for the applicant placed upon certain of the other provisions of Pt III of the Crimes Act 114 in which s.43 appears. Section 31 of the Act defines "judicial proceedings" to mean a proceeding, inter alia, before a body or a person acting under the law of the Commonwealth in which evidence may be taken on oath. It thus includes a proceeding in which judicial power is not being exercised. The expression "judicial proceeding" is used in subsequent sections which provide for various offences. For instance, s.35 makes it an offence for any person, in any judicial proceeding, knowingly to give false testimony. Section 36 provides that any person, who with intent to mislead any tribunal in any judicial proceeding, fabricates evidence or knowingly makes use of fabricated evidence, is guilty of an offence. Reference may also be made to ss 36A, 37, 38, 39 and 40.
Counsel submitted that it would have been appropriate, if s.43 were to have the effect contended for by counsel for the first respondent, to have used the words "in relation to any judicial proceeding" rather than the words "in relation to the judicial power of the Commonwealth". This, so he submitted, led to the conclusion that s.43 applied only in cases where the attempt to pervert the course of justice was in respect of a truly judicial proceeding pending at the time the attempt was alleged to have occurred. I have given this submission due consideration, but in my opinion, the words "in relation to the judicial power of the Commonwealth" were inserted for the purpose of making it clear that the section applied in Commonwealth matters as distinct from State matters. There is no reason why a section picking up a provision from a Code, that is, the Queensland Criminal Code, should be restricted in meaning in this way. To give it the meaning contended for by counsel would narrow it in a most arbitrary fashion for which there is no apparent reason. I would therefore reject the applicant's second ground.
In the result the application is dismissed with costs.
ORDER
Application dismissed with costs
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