Gillis, J.J. v Commonwealth Director of Public Prosecutions

[1993] FCA 258

JAMES JOSEPH GILLIS v. COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
No. WAG208 of 1992
FED No. 258
Number of pages - 8
Administrative Law
(1993) 119 ALR 510

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Lee J(1)

CATCHWORDS

Administrative Law - review of decision to prosecute on indictment - accused charged with offence against law of Commonwealth but committed for trial on indictment for offence against State law - whether magistrate had power to commit for trial for offence against State law - nature of jurisdiction to commit for trial on indictment.

Criminal Law - ex officio indictment - powers of Director of Public Prosecutions.

Administrative Decisions (Judicial Review) Act 1977

Customs Act 1905 para.233B(1)(ca)

Director of Public Prosecutions Act 1983 sub-ss.6(1), 6(2A), 6(2B), 6(2C), 6(2D); paras.6(1)(a), 6(1)(c), 6(1)(e), 10(1)(a); sub-para.6(2C)(b)(ii)

Judiciary Act 1903 ss.39, 68, 69, 71A; sub-ss.68(1), 68(2)

Justices Act 1902 (W.A.) ss.42, 101-107

Misuse of Drugs Act 1981 (W.A.) para.6(i)(a)

The Constitution s.77(iii)

Brereton, Willis, "The Committal in Australia", AIJA (1990)

R. v. Loewenthal; Ex parte Blacklock (1974) 131 CLR 338

R. v. Murphy (1985) 158 CLR 596

Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321

Barton v. The Queen (1980) 147 CLR 75

Connor v. Sankey (1976) 2 NSWLR 570

Ex parte Dowsett Re Macauly (1943) 60 WN (N.S.W.) 40

Duffield v. R. (1992) 110 ALR 323

Jago v. District Court of New South Wales (1989) 168 CLR 23

Kingswell v. The Queen (1985) 159 CLR 264

Lovell v. Zempilas (1990) 21 ALD 728

Newby v. Moodie (1988) 83 ALR 523

Williams v. The King (No. 2) (1934) 50 CLR 551

HEARING

PERTH, 4 March 1993

#DATE 24:4:1993

Counsel for the Applicant: O.P. Holdenson, T.F. Percy

Solicitors for the Applicant: Phillip Kelly

Counsel for the Respondent: J.A. Scholz

Solicitors for the Respondent: Director of Public

Prosecutions (Commonwealth)

ORDER

THE COURT ORDERS AND DECLARES THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs to be taxed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

LEE J The applicant ("Gillis") seeks an order from this Court under s.16 of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") or, alternatively, an injunction under s.39B of the Judiciary Act 1903 ("the Judiciary Act") directing the respondent ("the DPP") to refrain from proceeding with the prosecution of Gillis upon an indictment presented by the DPP in the District Court of Western Australia. Counsel for the DPP conceded that the Court had jurisdiction to make an order against the DPP pursuant to s.39B of the Judiciary Act but contended that the institution of a prosecution on indictment was not a "decision" within the provisions of the ADJR Act and, therefore, the Court did not have jurisdiction to make an order under that Act.

1. On about 1 December 1991 by a complaint issued under s.42 of the Justices Act 1902 (W.A.) ("the Justices Act"), Gillis was charged with possession of a prohibited import, to wit, heroin in an amount not less than a trafficable quantity contrary to para.233B(1)(ca) of the Customs Act 1905 ("the Customs Act").

2. By reason of the complaint Gillis was brought before a Court of Petty Sessions and in due course he elected to have a preliminary hearing of the charge pursuant to the Justices Act. The preliminary hearing was conducted by a stipendiary magistrate sitting as a Court of Petty Sessions in Perth. The magistrate declined to commit Gillis for trial on indictment on the offence charged but ordered that Gillis be committed for trial on indictment in the District Court of Western Australia for the offence of possession of a prohibited drug contrary to para.6(i)(a) of the Misuse of Drugs Act 1981 (W.A.). The order committing Gillis for trial was made on 24 September 1992.

3. On 1 December 1992 a delegate of the DPP signed an indictment which alleged that on 1 December 1991 Gillis, with another, had possession of a prohibited import, namely heroin, in an amount not less than a trafficable quantity contrary to para.233B(1)(ca) of the Customs Act and, alternatively, that Gillis attempted to obtain possession of that prohibited import on that day. The indictment was presented in the District Court on or about 4 December 1992. Gillis was arraigned on the indictment on 7 December 1992. Counsel for the DPP submitted that the prosecution instituted against Gillis by presentation of the indictment was commenced pursuant to sub-s.6(2C) of the Director of Public Prosecutions Act 1983 ("the DPP Act"). At this time no indictment has been presented in respect of the charge on which Gillis was committed for trial by the magistrate.

4. The functions of the DPP are described in sub-s.6(1) of the the DPP Act, the first mentioned being para.6(1)(a), to institute prosecutions on indictment for indictable offences against the laws of the Commonwealth.

5. At its commencement, the DPP Act did not contain a statement of the powers available to the DPP to carry out the function described in para.6(1)(a) of the DPP Act. It was taken that the powers were, first, those necessary to fulfil the functions set out in paras.6(1)(c) and (e) of the DPP Act, namely to institute proceedings for the commitment of persons for trial in respect of indictable offences against the laws of the Commonwealth, and to carry on such proceedings and, second, the power to sign and present the indictments necessary to institute the prosecution of persons who had been committed for trial on indictment for offences against the laws of the Commonwealth. By amendments to the DPP Act effected between 1986 and 1989 sub-ss.6(2A)-(2D) were inserted and amended to state and expand the implied powers referred to. (See Duffield v. R. (1992) 110 ALR 323 per Kirby P at pp 330-336.)

6. Sub-ss.6(2A)-(2D) read as follows:
   

"6(2A) The Director may, with the consent of the person concerned, institute a prosectuion of a person on indictment for an indictable offence against the laws of the Commonwealth in respect of which the person has not been examined or committed for trial.

(2B) Where a person has been committed for trial in respect of an indictable offence or indictable offences against the laws of the Commonwealth, the Director may, whether or not the Director institutes a prosecution on indictment for the offence, or for all or any of the offences, for which the person was committed for trial, institute a prosecution of the person on indictment for -

(a) an offence for which the person was

examined but not committed for trial; or

(b) any other offence founded on facts or evidence disclosed in the course of the committal proceedings;

without -

(c) where paragraph (a) applies - the person having been committed for trial in respect of the offence; or

(d) where paragraph (b) applies - the person having been examined or committed for trial in respect of the offence.

(2C) Where:

(a) a person has been committed for trial otherwise than in respect of an offence against the laws of the Commonwealth; and

(b) the Director is satisfied:

(i) that the facts or evidence on the basis of which the person was committed for trial disclose the commission of an indictable offence or indictable offences against the laws of the Commonwealth; and

(ii) that, had the person's committal for trial for the indictable offence or indictable offences been sought on the basis of those facts or that evidence, the person could have been committed for trial for the indictable offence or indictable offences;

the Director may institute a prosecution on indictment of the person for the indictable offence or indictable offences or any of the indictable offences without the person having been examined or committed for trial.

(2D) Subject to subsection (2E), in any other case where the Director considers it appropriate to do so, the Director may institute a prosecution of a person on indictment for an indictable offence against the laws of the Commonwealth in respect of which the person has not been examined or committed for trial."

1. The broad power contained in sub-s.6(2D) of the DPP Act was not relied upon by the DPP. Pursuant to s.31 of the DPP Act the power of the DPP to institute a prosecution pursuant to sub-s.6(2D) is not a delegable power.

2. The powers of the DPP under the DPP Act are powers created and granted by Parliament for the better administration of the criminal law. The Attorney-General retains the common law and prerogative powers recognized in ss.69 and 71A of the Judiciary Act and in para.10(1)(a) of the DPP Act. (See Barton v. The Queen (1980) 147 CLR 75 per Gibbs ACJ, Mason J at pp 90-94.)

3. Counsel for Gillis submitted that the DPP's power to act under sub-s.6(2C) of the DPP Act depends upon a "valid" committal of a person for trial. It was said that the committal of Gillis was not a "valid" committal in that the magistrate lacked power to commit Gillis for trial for an offence under the Misuse of Drugs Act 1981 (W.A.).

4. A problem raised by that submission is that the order that Gillis be committed for trial is not challenged in these proceedings. The proceedings amount to a collateral attack upon the order which will continue in force and on its face ground an exercise of power by the DPP under sub-s.6(2C) of the DPP Act.

5. The submission that the magistrate lacked power to commit Gillis for trial ran as follows.
   First, it was said that as a court of summary jurisdiction the magistrate was exercising federal jurisdiction pursuant to sub-ss.68(1) and 68(2) of the Judiciary Act which read as follows:
   

"68.(1) The laws of a State or Territory respecting the arrest and custody of offenders of persons charged with offences, and the procedure for:

(a) their summary conviction; and

(b) their examination and commitment for trial on indictment; and

(c) their trial and conviction on indictment; and

(d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith;

and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section.

(2) The several Courts of a State or Territory exercising jurisdiction with respect to:

(a) the summary conviction; or

(b) the examination and commitment for trial on indictment; or

(c) the trial and conviction on indictment; of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.

1. The relevant laws of the State of Western Australia with respect to the examination and commitment for trial on indictment are contained in ss.101-107 of the Justices Act. Of particular relevance are ss.106 and 107 which read as follows:
   

"106. When, on a preliminary hearing, all the evidence offered upon the part of the prosecution against a person charged with an indictable offence, as such, has been heard, if the justices then present are of opinion that it is not sufficient to put the defendant upon his trial for any indictable offence, the justices shall forthwith order the defendant, if he is in custody, to be discharged as to the complaint then under inquiry.

107. If there is no preliminary hearing and the defendant has pleaded not guilty or if, on a preliminary hearing in the opinion of the justices, the evidence is sufficient to put the defendant upon his trial for an indictable offence, then they shall order him to be committed to take his trial for the offence before some court of competent jurisdiction, and in the meantime shall, by their warrant, commit him to gaol, to be there safely kept until the sittings of the court before which he is to be tried, or until he is delivered by due course of law."

1. Second, it was said that having declined to commit Gillis for trial in respect of an indictable offence against the laws of the Commonwealth, the magistrate's power to commit for trial had been exhausted. It was said that only federal jurisdiction had been enlivened by the complaint of an offence against the laws of the Commonwealth and no question of concurrent State jurisdiction arose. It was submitted that State jurisdiction could be exercised only if a separate complaint of a State offence had been made under the Justices Act.

2. Before dealing with that argument it is necessary to have regard to the nature of a committal proceeding under the Justices Act. Although a magistrate is required to conduct a committal proceeding by application of judicial principles, the ultimate decision remains an administrative act. The decision involves the exercise of an executive power delegated to the magistrate as an aid to the administration of the criminal law. The magistrate may apply judicial methods to the decision-making process but the decision does not become a judicial function by virtue of judicial characteristics attaching to the committal proceedings. That remains so notwithstanding that sub-ss.68(1) and (2) of the Judiciary Act speak of the "jurisdiction" of a court to commit for trial on indictment. It may be noted that unlike s.39 of the Judiciary Act s.68 has not "invested" State courts with that jurisdiction as provided for by s.77(iii) of the Constitution. At least in respect of committal proceedings, the jurisdiction referred to is more than the federal jurisdiction referred to in Chapter III of the Constitution and includes the conferral of non-judicial powers. (See R. v. Murphy (1985) 158 CLR 596 at pp 614-616.)

3. The use of a court of summary jurisdiction as the agency through which a person is directed to stand trial on indictment is a compromise between the unwieldy procedure of assembling a grand jury to attest an indictment to be a true bill and the unbridled exercise of prerogative powers vested in the Attorney. (See Kingswell v. The Queen (1985) 159 CLR 264 per Deane J at pp 303-305.)

4. The examination and commitment for trial procedure established by the Justices Act has vestiges of the powers and duties of a grand jury devolved by the Act upon a stipendiary magistrate or justices sitting as a Court of Petty Sessions. (See Brereton, Willis, "The Committal in Australia", AIJA (1990) at p 5.)

5. The magistrate's powers to inquire, to form an opinion and to commit for trial under s.107 of the Justices Act are initiated by the issue of a complaint under s.42 of the Justices Act.

6. The task of the magistrate sitting as a Court of Petty Sessions as instructed by ss.106 and 107 of the Justices Act is to review the material presented to the Court and decide whether the person charged should be committed for trial. The committal for trial may be in respect of any indictable offence for which the evidence before the court is sufficient to put the defendant on trial notwithstanding that the charge alleged in the complaint which initiated the proceeding is not so established. The totality of evidence received relevant to the charge alleged, may show that another indictable offence has been committed and that the person charged should stand trial on indictment in respect of that offence. The use of the words "an indictable offence" in s.107 of the Justices Act makes it clear that such a wide power to commit is provided. (See Ex parte Dowsett Re Macauly (1943) 60 WN (NSW) 40; Connor v. Sankey (1976) 2 NSWLR 570.)

7. By s.68 of the Judiciary Act a Court of Petty Sessions obtains enlarged jurisdiction and powers to carry out functions incidental to the administration of the criminal law involving offences against the laws of the Commonwealth.

8. The intent of the enlargement of the jurisdiction and the powers of the State court is to provide for that court to uniformly administer the criminal law of the Commonwealth and of the State within one system.

9. As Dixon J said in Williams v. The King (No. 2) (1934) 50 CLR 551 at p 560:
   

"This accords with the general policy disclosed by the enactment (the Judiciary Act sub-s.68(2)), namely, to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice."

1. Although the particular question before his Honour in Williams v. The King related to the exercise of appellate jurisdiction in the criminal law, the comments are equally apt in respect of a proceeding for commitment for trial on indictment. (See R. v. Murphy at p 617; R. v. Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 per Mason J at p 345.)

2. If the material presented to a Court of Petty Sessions on a committal proceeding is relevant to the charge alleged in the complaint and does not involve a "roving enquiry" as to whether the person charged had committed any indictable offence (see Ex parte Dowsett at p 42), a magistrate has power to administer the system of criminal justice by committing a person for trial on indictment upon any offence disclosed by that evidence. The fact that the power to sign and present indictments may be divided between Commonwealth and State authorities in the name of the Crown in the right of the Commonwealth and in the right of the State respectively according to whether the matter for which a person has been committed for trial involves an offence against Commonwealth or State law does not affect the magistrate's power to commit a person for trial in the administration of a single system of criminal justice.

3. The decision of the magistrate to commit Gillis for trial on indictment for an offence against the Misuse of Drugs Act 1981 (W.A.) did not exceed the magistrate's power.

4. It was then submitted by counsel for Gillis that, properly construed, the words in sub-para.6(2C)(b)(ii) "had the person's committal...been sought...the person could have been committed for trial..." mean that an unsuccessful proceeding for the committal of that person for trial in respect of an indictable offence against the laws of the Commonwealth is not within the sub-paragraph and in such circumstances prosecution for that offence may only be instituted by an indictment signed by the DPP personally pursuant to sub-s.6(2D) of the DPP Act.

5. A literal reading of the words of the sub-paragraph may suggest that result but the words must be read in the context in which they appear and, in particular, with cognizance given to the provisions of sub-s.6(2B). Pursuant to that sub-section failure to obtain an order that a person be committed for trial in respect of an indictable offence against the laws of the Commonwealth is not a bar to instituting a prosecution on indictment for that offence under that sub-section if a person has been committed for trial in respect of another indictable offence against the laws of the Commonwealth. The prosecution may be instituted notwithstanding that the DPP may decline to prosecute the offence for which the person was committed for trial. It would be a strange result and, therefore, unlikely to have been the intention of Parliament in sub-s.6(2C), if a person committed for trial in respect of a State offence on facts or evidence on which the DPP had unsuccessfully sought committal for trial on an indictable offence against the laws of the Commonwealth were not liable under that sub-section to the exercise by the DPP of a similar discretion to that available under sub-s.6(2B).

1. I conclude, therefore, that no cause has been shown to interfere with the discretion exercised by the DPP pursuant to sub-s.6(2C) of the DPP Act.

2. In consequence of that finding it is unnecessary to deal with the question whether in any event this Court should entertain a request to exercise its discretion in a manner that would affect the administration of the criminal law by a State court duly seised of the matter and capable of dealing with, and deciding, any demurrer or submission of nullity in respect of the indictment. (See Lovell v. Zempilas (1990) 21 ALD 728; Jago v. District Court of New South Wales (1989) 168 CLR 23.)

3. It is also unnecessary to determine whether the institution of a prosecution by the DPP by signing and presenting an indictment was a "decision" within the terms of the ADJR Act. Counsel for the DPP submitted that a decision to present an indictment was not an ultimate or operative determination as defined by Mason CJ in Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 at p 338. However, the interpretation of "decision" favoured by the Chief Justice in Bond was one which required the relevant administrative act to be more than a mere formation of opinion or statement of conclusion and to be an act which resulted from the exercise of a determinative power provided for by an enactment. It would be most surprising if a decision to institute a prosecution, effected by the signing and presentation of an indictment as provided for by s.6 of the DPP Act, did not meet that interpretation. (See Newby v. Moodie (1988) 83 ALR 523 at p 527.)

4. The application will be dismissed with costs.