Gillis, J.J. v The Commonwealth Director of Public Prosecutions
[1993] FCA 505
•28 JULY 1993
JAMES JOSEPH GILLIS v. THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
No. WAG66 of 1993
FED No. 505
Number of pages - 6
Criminal Law
(1993) 43 FCR 458
(1993) 121 ALR 107
(1993) 69 A Crim R 364
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Ryan(1), O'Loughlin(1) and Drummond(1) JJ
CATCHWORDS
Criminal Law - Prosecution - Committal for Trial - Commonwealth Director of Public Prosecutions - Power to prosecute on indictment for Commonwealth offence where accused committed for State offence and where no order for committal in respect of any Commonwealth offence
Director of Public Prosecutions Act (1983) (Cth) ss. 6, 31.
Judiciary Act (1903) (Cth) sub-ss. 68(1), (2).
R v Loewenthal; Ex Parte Blacklock (1974) 131 CLR 338.
R v Murphy (1985) 158 CLR 596.
Williams v The King (No 2) (1934) 50 CLR 551.
HEARING
PERTH, 28 July 1993
#DATE 28:7:1993
Counsel for the Appellant: Mr P C Dane QC
Mr O P Holdenson
Solicitor for the Appellant: Phillip Kelly
Counsel for the Respondent: Mr J A Scholz
Solicitor for the Respondent: The Commonwealth Director of Public
Prosecutions
ORDER
The Court orders:
1. That the appeal be allowed.
2. That the decision of the Commonwealth Director of Public Prosecutions to prosecute James Joseph Gillis upon the indictment signed by W.I. Nairn as Deputy Director on 24 November 1992 and filed at the District Court of Western Australia on 27 November 1992 in matter No 31 of 1992 be set aside and that the matter the subject of the said decision be referred to the Commonwealth Director of Public Prosecutions for further consideration according to law.
3. That the respondent pay the appellant's costs including reserved costs of the appeal and the hearing at first instance such costs to be taxed.
Note: Settlement and entry of orders is dealt with in O.36 of the Federal Court Rules.
JUDGE1
RYAN, O'LOUGHLIN AND DRUMMOND JJ On 1 December 1991 a complaint was issued charging the appellant, Mr Gillis, with possession of a prohibited import, heroin, in an amount not less than a trafficable quantity contrary to s.233B(1)(ca) of the Customs Act 1905. A preliminary hearing was conducted by a Stipendiary Magistrate sitting as a Court of Petty Sessions who declined to commit the appellant for trial on indictment on the offence charged. However, the learned magistrate committed Mr Gillis for trial for the offence of possession of a prohibited drug contrary to s.6(1)(a) of the Misuse of Drugs Act 1981 (WA). On 1 December 1992, a delegate of the respondent ("the DPP") signed an indictment alleging possession by Mr Gillis of a prohibited import, heroin, in an amount not less than a trafficable quantity contrary to s.233B(1)(ca) of the Customs Act and alternatively alleging that he had attempted to obtain possession of that prohibited import. Mr Gillis was arraigned on that indictment on 7 December 1992 at which time no indictment had been presented against him in respect of the charge under s.6(1) of the Western Australian Misuse of Drugs Act on which he had been committed by the Magistrate.
The power exercised by the DPP in relation to Mr Gillis was said to have been exercised under s.6(2C) of the Director of Prosecutions Act 1983 (Cth) ("the DPP Act"). To enable that sub-section to be understood in its context, it is appropriate to set out sub-ss. 6(1) (so far as is relevant) and 6(2A) to 6(2D) of the DPP Act:
"6.(1) The functions of the Director are-
(a) to institute prosecutions on indictment for indictable offences against the laws of the Commonwealth;
(b) to carry on prosecutions of the kind referred to in paragraph (a) (not being prosecutions instituted by the Attorney-General or a Special Prosecutor), whether or not instituted by the Director;
(c) to institute proceedings for the commitment of persons for trial in respect of indictable offences against the laws of the Commonwealth;
(d) to institute proceedings for the summary conviction of persons in respect of offences against the laws of the Commonwealth; ...
(m) where the Director, with the consent of the Attorney-General, holds an appointment to prosecute offences against the laws of a State - to institute and carry on, in accordance with the terms of the appointment, prosecutions for such offences; and
(n) to do anything incidental or conducive to the performance of any of the functions referred to in paragraphs (a) to (m) and in sub-section (2). ...
6(2A) The Director may, with the consent of the person concerned, 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.
(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 other 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."
It is clear that Mr Gillis was, in fact, committed for trial on a charge of an offence against s.6(1)(a) of the Western Australian Misuse of Drugs Act and so was "committed for trial otherwise than in respect of an offence of the laws of the Commonwealth" as contemplated by s.6(2C)(a) of the DPP Act. However, it has been submitted by Mr Dane QC, who appeared with Mr Holdenson for the appellant, that the first pre-requisite to the exercise of the DPP's power in s.6(2C) which is erected by paragraph (a) of the sub-section can only be satisfied by a valid committal for trial in respect of an offence against the laws of a State. In the present case, it is submitted, the committal was invalid because the only complaint before the Magistrate was one alleging an offence against the laws of the Commonwealth. Accordingly, the order for committal in respect of an offence against the laws of a State was made without jurisdiction because no complaint alleging any offence against the State law had been laid to enliven the Court of Petty Sessions with jurisdiction under State law. The only jurisdiction, so it was argued on behalf of the appellant, which the Magistrate had ever exercised was that conferred by sub-ss.68(1) and (2) of the Judiciary Act 1903 (Cth) which had been enlivened by the laying of a complaint under the Customs Act.
Whether the Magistrate was exercising State or Federal jurisdiction, or both, the final procedural steps which he was required to take were the same, being ordained in these terms by ss.106 and 107 of the Justices Act 1902 (WA):
"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."
Counsel for the DPP has submitted that the references to any indictable offence in s.106 and an indictable offence in s.107 (emphasis added) require a Magistrate to consider whether the evidence adduced during the committal hearing is sufficient to put a defendant upon trial for any indictable offence against the laws of the Commonwealth or the laws of the State of Western Australia.
The learned primary Judge concluded that it was open to the Magistrate in the present case to commit the appellant for trial only in respect of an offence against the Misuse of Drugs Act (WA) notwithstanding that the only complaint before the Magistrate was in respect of an offence against the Commonwealth Customs Act. His Honour reached that conclusion by noting that s.68 of the Judiciary Act "enlarged" the jurisdiction and powers of a State court to enable it to administer uniformly the criminal law of the State and the Commonwealth within one system. Reference was then made to Williams v The King (No 2) (1934) 50 CLR 551, R v Murphy (1985) 158 CLR 596 at 617 and R v Loewenthal Ex parte; Blacklock (1974) 131 CLR 338 at 345, and his Honour continued:
"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 Re Macauly (1943) 60 WN (NSW) 40 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."
We entertain some doubt, with respect, as to whether a provision in State legislation which has been made applicable to prosecutions for offences against Commonwealth law can be available in a case in which a Magistrate is concerned solely with a Commonwealth prosecution to support an exercise of power by that Magistrate with respect to an offence against State law where no proceedings related to any contravention of State law have been instituted.
However, it is unnecessary for us to form a concluded view on that question because, even assuming the Magistrate's order of committal in respect of an offence against the Western Australian Misuse of Drugs Act to be valid or otherwise unchallengeable, we consider that it did not provide a foundation in this case for a proper exercise of the power conferred by s.6(2C) of the DPP Act. That is because the structure of sub-ss. (2A) to (2D) of s.6 reveals four distinct sets of circumstances in which the DPP is empowered to institute a prosecution on indictment for an indictable offence against the laws of the Commonwealth.
Before describing those four sets of circumstances it is relevant to point out that the power predicated on any of the first three may be delegated to a member of staff of the Office of the DPP; (s.31 of the DPP Act). However, as we indicate when discussing it below, the power conferred by sub-s.6(2D) is not delegable. It is common ground that the indictment that was signed on 1 December 1992 was not signed personally by the DPP but by one of his officers. In considering the structure of sub-ss.6(2A) to (2D) and its application to the facts of this case it is therefore necessary to bear in mind that the DPP did not purport to exercise his power to file an ex officio indictment.
The first set of circumstances contemplated by s.6(2A) occurs when the accused person consents to the institution of the indictment without undergoing a committal proceeding.
Secondly, under s.6(2B) where an order for committal has been made in respect of at least one indictable offence against the laws of the Commonwealth, the DPP or a delegate may institute a prosecution on indictment for any other offence against the laws of the Commonwealth disclosed by the evidence adduced on the committal irrespective of whether that offence was the subject of a complaint on which the Magistrate declined commit, or was not the subject of the examination on the committal. Sub-section 6(2B) also acknowledges that the DPP, in his or her discretion, may institute, or decline to institute, a prosecution on indictment for each offence in respect of which the Magistrate has made an order of committal for trial.
Thirdly, s.6(2C) applies where an order for committal has been made in respect of an offence otherwise than against the laws of the Commonwealth. In that event, the DPP or a delegate may institute a prosecution on indictment for one or more offences against the laws of the Commonwealth without the accused's having been examined in a committal hearing or committed for trial in respect of the Commonwealth offence or offences. That exercise of power is conditioned, first, on the DPP's being satisfied that the evidence adduced in the course of the committal hearing in respect of the offence against State law disclosed the commission of the relevant offence or offences against Commonwealth law. Secondly, the DPP must be satisfied that, had the accused's committal in respect of the Commonwealth offences been sought on the basis of the evidence disclosed during the committal hearing for the State offences, an order of committal could have also been made in respect of the Commonwealth offence or offences.
The use of the past perfect tense in the conditional clause "had the person's committal ... been sought", connotes an unreal condition, impossible of fulfilment at the time when the DPP is required to be satisfied, that the person could have been committed for trial on the Commonwealth offence or offences. In other words, the occasion for institution by the DPP of a prosecution on indictment only arises under s.6(2C) if no application for committal in respect of the relevant Commonwealth offence has been made to the Magistrate who made the order for committal on a charge of a State offence. It does not arise if an order for committal in respect of the Commonwealth offence has been sought but refused by the Magistrate. It must be noted that the analysis of sub-s. 6(2C) which we have just undertaken did not commend itself to the learned primary Judge who observed, at p 14 of his reasons:
"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). 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."
With respect, we favour the literal reading. When accorded to both sub-ss 6(2B) and (2C) it evinces an intention that an accused person should not be prosecuted on indictment by the DPP (except pursuant to the non-delegable power conferred by s.6(2D)) if a Magistrate has been requested but has refused, after examining the facts or evidence said to disclose the commission of a Commonwealth offence, to commit that person for trial in respect of any Commonwealth offence.
Had it been intended that the DPP or a delegate could institute a prosecution on indictment notwithstanding a Magistrate's refusal to commit for any offence against the laws of the Commonwealth, it would have been possible to make delegable the general power to file an ex officio indictment. What is more the legislature had readily at hand in s.6(2B)(a) a means of expressing that intention. The apparently deliberate abstention from use, in the next sub-section, of the same drafting formula, compels the conclusion, in our view, that Parliament intended that the refusal of a Magistrate to commit for trial in respect of any offence against the laws of the Commonwealth should not be overridden except by the personal decision of the DPP to institute an ex officio indictment under s.6(2D).
Finally, sub-s. 6(2D) confers on the DPP an overriding discretion to institute a prosecution on indictment for an offence against the laws of the Commonwealth without the person charged having been examined or committed for trial in respect of that offence, or, indeed, any offence. Excepted from that overriding discretion by the words "subject to sub-section (2E)" are prosecutions for offences against the War Crimes Act 1945 which can only be instituted after a committal hearing. As the learned primary Judge noted in his reasons, by virtue of s.31 of the DPP Act as amended, the overriding discretion conferred by sub-s. 6(2D) is not delegable but must be exercised personally by the DPP or Associate Director.
In light of the construction which we have put on sub-s 6(2C) in its context, we would allow the appeal. We were invited, in the event that we should reach this conclusion, to frame an injunction under s.39B of the Judiciary Act restraining the DPP from proceeding with the indictment on which Mr Gillis was arraigned on 7 December 1992. However, the evidence does not permit this Court to find whether the charge of attempting to obtain possession of a prohibited import was one on which it had been sought to have Mr Gillis committed for trial. Only if a committal on the alternative charge of attempt was sought, is the DPP, on our interpretation of sub-s. 6(2C) precluded from instituting a prosecution on indictment for that alternative offence. In the second place, it remains open to the DPP, as we have already indicated, to prosecute Mr Gillis on indictment under sub-s. 6(2D) for either or both the offences of possession, and attempting to obtain possession, of a prohibited import.
We agree with the learned primary Judge that the decision of the DPP to present the indictment in question against Mr Gillis is reviewable under the provisions of the Administrative Decision (Judicial Review) Act. Accordingly, we shall order, pursuant to that Act, that the decision of the DPP to prosecute the appellant on indictment on a charge in respect of which his committal for trial had been sought in the Court of Petty Sessions of Western Australia be set aside and the matter the subject of the said decision be referred to the DPP for further consideration according to law. The DPP must pay the appellant's taxed costs of the appeal and of the hearing at first instance.
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