Foord, J.M. v Whiddett, A.m - [1985] FCA 179

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1985] FCA 179
Decision Date: 14 MAY 1985

CaseChat Overview and Summary

The case of Foord, J.M. v Whiddett, A.M. involved an application for judicial review of a magistrate's decision to proceed with a criminal prosecution for the offence of attempting to pervert the course of justice. The dispute centred on the interpretation and application of the statutory criteria for establishing a prima facie case in the context of this specific criminal offence. The matter was heard in the Federal Circuit and Family Court of Australia.

The legal issues before the court included the nature and content of the offence of attempting to pervert the course of justice, specifically whether the requirement of a "risk" or "possibility" that injustice might result was correctly applied by the magistrate. Additionally, the court had to consider the discretionary powers of review in criminal proceedings and the scope of "judicial power" of the Commonwealth as defined in the Administrative Decisions (Judicial Review) Act 1977. The interpretation of relevant sections of the Crimes Act 1914, the Judiciary Act 1903, and the Justices Act 1902 also formed part of the court's considerations.

The court held that the magistrate's findings regarding the establishment of a prima facie case were supported by the evidence and correctly applied the legal criteria for the offence. It was determined that the requirement of a "risk" or "possibility" of injustice was appropriately assessed in the context of the evidence presented. The court also concluded that the magistrate's decision fell within the scope of "judicial power" as defined by the relevant statutes, thus rendering the decision justiciable under the Administrative Decisions (Judicial Review) Act 1977. Consequently, the application for judicial review was dismissed.

No additional orders were made by the court beyond dismissing the application for judicial review.

Orders