Grassby v The Queen

[1989] HCATrans 80

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry No S231 of 1988

Sydney

B e t w e e n -

ALBERT JAIME GRASSBY

Applicant

and

THE QUEEN

Respondent

Application for special leave to

appeal

MASON CJ
BRENNAN J
DEANE J
DAWSON J

TOOHEY J

Grassby

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 12 APRIL 1989, AT 9.57 AM

(Continued from 11/4/89)

Copyright in the High Court of Australia

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MASON CJ:	Yes, Mr Bennett.
MR BENNETT:	At the end of the hearing yesterday Your Honour

the Chief Justice asked me about three references

in volume I of the white book at which the magistrate

appears to have referred to the trial rather than

the committal. The first of those is at page 152

and we make two submissions about that passage.

The first and most important is that this is not

part of his reasons for the order which he made.

This was on the previous occasion where he was

delivering judgment and he started delivering

judgment about the defamation count against Mr Grassby

having dealt with every other count against every

other person and determined that there was no matter

on which anyone else should be committed for anything

else. Then at line 12,he says:

I'll just come back to the matter now concerning

Mr Grassby and I've purposefully not gone any

further in that matter because subject to what counsel

wish to say about the matter, I have thought of

granting a permanent stay of the proceedings.

The reasons that I have thought of that -

and he then goes on with the rest of 152. These

are not his reasons for his ultimate decision, they

are the reasons why he thought of the matter and

proposes to invite counsel to make submissions

to him. Those reasons are, first, that it was clear

in 1980 that the charge could have been brought

then if it was going to brought and he says additionally

he was sued and there was an apology.	But at line 35,
he said:

I've had certain rema~ks to say about the

evidence of Mr Smith and the attitude of the

National Crime Authority, having regard to

those circumstances it would seem to me that it

would be an abuse of process to continue these

proceedings given the fact that if a trial

doesn't get on for another say two years,

some ten years will have passed -

apology has been accepted, considerable expense.

(Continued on page 35)

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MR BENNETT (continuing): And then, at line 46, he says:

The resultant outcome of which I would

have thought in the circumstances hardly

likely to result in imprisonment, perhaps

at worst might result in a bond of some

description or a fine, or perhaps even a conditional discharge atthe discretion -

He then refers to another matter, to a no bill in

the WATERHOUSE case. He says:

Taking all those matters into account, it

would seem to me that it would be oppressive

and would be an abuse of process for these

matters to continue. However, I invite counsel

to make submissions -

So, really it is his preliminary thoughts and when his final thoughts are put in his judgment a few pages

later, they are more precise and far more directed

to the committal than to the trial.

MASON CJ: There is another point about that, I suppose,

Mr Bennett,and it is this: that the point at which

it occurs to the magistrate that he might exercise

this power for the first time is the point where he

has reached the conclusion that he would commit for

trial but for the possible exercise of this power.

:t1R BENNETT: 

Yes but, Your Honour, we would submit it does not

matter what order his thought processes proceed in.
If it is proper for a magistrate to say, as I will
be submitting that it is, that"having considered all

the evidence, my conclusion is:  (1) there has been

an abuse of process on the basis of which proceedings

before me should be stayed and the moving party granted

no further relief; (2) that material which has come

before me in that way would otherwise, ie, but for

the abuse of process, result in a committal", then we

would submit he is entitled to proceed in that way. (Continued on page 36)

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MR BENNETT (continuing):  The mere fact that he does that after

rather than before does not affect the situation.

There is not a magic moment where the magistrate

comes to a view in his mind and, at that point is

processes; it operates on the expression of those processes and the reaching of a given stage in

obligated to make an order under section 41.

the proceedings. For example, suppose the magistrate

had said at that point, instead of saying, "I have

thought about this abuse of process proble~' -

suppose he had said, "Now, just a moment, when I

think about the matter more carefully, I think there

is a gap in the prosecution case and I think that

there is a problem and that a jury would not be

likely to convict."

One would not say, "Well, he has already formed

the opinion." If one takes the first part of this

judgment, he has expressed a view, therefore he had

an ogligation; he had no right to add that. One

does not break up the process into a series of

seconds and say at a particular point when his mind

reaches a particular stage he has an obligation

and that is all he can do. We submit once it is

accepted that he may say, "There bein? an abuse

of process, the proceedings must stop' , it does

not matter that he has also come to the conclusion that, but for the abuse of process he would commit.

The second passage Your Honour referred me to

was at page 154 and that really is	the procedural
step being taken and nothing more.	It starts at

line 12. He is discussing when is a convenient

date and, in that context he says:

I might just indicate this in fairness .....

it may well be that if I do make an order

permanent staying the proceedings -

'it would be contested and then it may come back and

then I would have to commit for trial" What he is

really saying is, if that happens it may cause

further suffering to Mr Grassby and be undesirable. The context of the conversation is Dr Woods saying,

"Well, that is a risk that we will gladly take."

That appears at line 27.	But there is nothing
there which goes to tQe basis for it.	He is still

merely speculating on what is going to be put,to

him.

The third passage is at page 182 line 18 and

it is important about this passage that it appears

after he has gone through his twelve grounds which

I was in the process of ta.king Your Honours through

yesterday, to which I will return.

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MR BENNETT (continuing):  At line 18 he says:

It seems to me that any public interest that may be served by these proceedings

continuing, is so slight compared to the

disadvantages to the defendant that the
defendant would suffer in consequence,

and taking into account the other matters -

et cetera.	What he is doing there is referring
to Mr Justice Kirby's fifth ground.	Your Honours

recall that in JAGO, 12 NSWLR - and I appreciate

that this is subsequently on appeal to Your Honours

and reserved by this Court - Mr Justice Kirby

in that volume set out at pages 565 to 567 five

criteria. These are, of course, in the context

of a trial, but they are five criteria applied

by a judicial officer, to use a neutral term,

in determining whether there is an abuse of process.

The first is how long the delay is, the second

what are the reasons for the delay by the

prosecution, the third is the accused partly

responsible for it, fourth prejudice to the accused,

and then fifthly the public interest in the trial

of serious criminal charges, and that is at

page 567C.

What His Worship is doing here is saying,

"I've dealt with the other matters. I now come

to the question of public interest and there is none

of that here because one's got an eight year offence

which at worst is going to produce a bond".

That is the purpose of mentioning it. He is not

say i ng, "There i s an ab us e o f pro c e s s be ca u s e the s e

matters are minor". He is not saying, "I am

exercising the Attorney-General's prerogative by

saying 'I don't really think this is a serious

enough case on which I should commit'". He is

not doing that. What he is saying is, "Having

found an abuse of process and having weighed all the

factors, one factor I have to weigh is the public

interest", and then, "This is a case, bearing in

mind what I've said about the offence, where there

is not too much public interest". So we would

submit none of those passages are contrary to

the argument which I am putting.

(Continued on page 38)

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MR BENNETT (continuing):  Your Honour Mr Justice Dawson

yesterday, at page 7 of the transcript, put to

me that there was an absence of legal effect

on my submissions on the stay. Your Honour,

in relation to that we make these submissions:
first, we concede, and, indeed, adopt - and I
understand this not to be the subject of dispute -

the proposition that the stay ordered by the

magistrate would not prevent an ex-officio

indictment. In other words, he has only stayed,

as I put yesterday, the committal proceedings

and nothing more.	He has stayed his part of
the process.

Your Honour then put to me, "Well, that

leads to an absence of legal effect." What we

would put is there is an absence of conclusive

effect; there is certainly not an absence of

legal effect. First of all, the CRIMINAL PROCEDURE

ACT of 1986 refers in section 9 to - after setting

up a whole procedure under which when there is

a committal now, unlike in the old days, the

papers are sent to the supreme court, there is

a file opened - if one can call it that - and

then one waits for the indictment as a step in

that procedure. And there is a reference to

if a period has passed since he was committed

for trial without the matter being brought before
the supreme court or terminated.

So the Act contemplates now the idea that

there is something which can be brought before
the court and terminated.

DAWSON J:	What is it?
MR BENNETT:	I suppose, Your Honour, an intended indictment.

Your Honour, I accept that as a matter of legal analysis the conceptual basis of what occurs remains the same but the difference is this,

that it would, today, be quite wrong, we would

submit, to say that there is no difference between

a decision after committal not to enter a no

bill and a decision to file an ex-officio indictment.

They may involve the same action.

(Continued on page 39)

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DAWSON J:  I may be wrong but I doubt whether ex officio

indictment is the right term here, but that may be

just a matter of substance.

MR BENNETT:  I am using the term colloquially because it is

only a colloquial term. There is no statute and

there is no rule which refers to ex officio indictments.

An"ex officio indictment" is the phrase used for

an indictment where there has not been an order

committing the defendant for trial and, of course,

in form the document is very much the same. There

may be a reference, a procedural matter to the

committal or there may not be. But the point I make

is that the normal legal process which is followed

is that where there is a committal for trial in the

normal course an indictment is filed. It is

extraordinary, it is an extraordinary remedy in that

situation applied occasionally for a positive decision

to be made to enter a no bill or as it is now called

to terminate the proceedings.

Conversely, where there is no committal for trial

it is an extraordinary legal event for the decision

to be made to file an indictment.

DAWSON J:	Not as extraordinary as all that, well, not in other places anyway.
MR BENNETT:	Well, in New South Wales - well, BARTON V REG suggested

it was reasonably extraordinary in that it has not

been done for, I think, a very long period of time.

I think in that case the suggestion was it had been

done once this century before BARTON.

DAWSON J:  I would think it was much common than that, certainly

in other jurisdictions.

MR BENNETT:  Well, I can only speak for New South Wales.

The practical difference between the two is enormous

and that is illustrated in this case by the fact

that the Crown seeks (a) to appeal, as it now has a
right to do under section SF	of the CRIMINAL APPEAL

ACT against the failure to commit for trial, and

stopping for a moment one wonders why does the Crown
do that when it can simply present an ex officio

indictment and when one argument - whatever arguments Mr Grassby would have if that were done, one argument he would not have is that "I've been deprived of

the right of a committal and a chance to cross-examine."

So the BARTON argument would be difficult to make.

He would really have to run an abuse of process again.

So the Crown sees the order committing for trial

as a benefit which it seeks in the litigation and

it sees that properly because there is a difference and a significant difference in the political arena

between a government saying, "n-iere has been a committal

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for trial, we.will file a bill in the normal course"

and a government saying, "There has been no cormnittal

for trial, we will file an ex officio indictment",

even though the documents may be the same and even

though in a theoretical conceptual sense the decision

may be the same. The practical difference is such

that the parties are concerned as to whether the
magistrate makes the order, the Act goes to the
trouble of requiring him in certain situations to

make an order one way or the other - that is something I will have to deal with later - and the Crown regards

it as something worth appealing against even though

it is the Crown that makes the decision ultimately.

All those factors indicate that a decision not to take

the final step is not one which has no legal effect,

it does have the legal effect.

DAWSON J:  That may just indicate a misconception which is

widespread as the function for a magistrate in

cormnittal proceedings.

MR BENNETT:	What we put is that the way the practice -
DAWSON J:	I follow the argument.

MR BENNETT:  Yes, if Your Honour pleases. There is one other

aspect of that which I should refer to briefly and

that is that the functions of the-players in the

criminal justice system are not mutually exclusive,
there is a considerable degree of overlap and the
general statement which is that it is the Crown and

not the magistrate which decides whether the

defendant is put on his trial is a statement which

ignores the fact that there are a series of steps

in the process beginning with the decision by

the police to investigate, I suppose, at any stage

of which a number of people may make a decision

which has the practical effect that a person is or

is not put on trial. Ultimately, the last of the

decisions along the line is the decision of the

Attorney-General or his delegate.

DAWSON J:  I will not carry it on but if what you say is

right then we are coming closer as a matter of

practicality to saying the functions of the grand
jury are now - really have become the functions
of the cormnitting magistrate, whereas in truth
those functions were reposed in the Attorney-General

and the Crown prosecutor as it was at the time.

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:MR BENNETT: Well, no, Your Honour. The answer to that is

that the stay by the magistrate does not prevent
the ex officio indictment and, therefore, the

functions have not yet been fully assimilated to

it. Certainly it is closer in that respect but

the law develops, practices change and it is

simply an example of them. One must remember that

the area of criminal trials ironically in New South

Wales is hardly covered by legislation. The

JUSTICES ACT stops at committal and bail; the

CRIMINAL APPEAL ACT takes over after trial; the

JURY ACT deals with jury aspects and now, in the

last two years only, the CRIMINAL PROCEDURE ACT

deals with certain preliminary steps but, basically,

the whole indictment and trial procedure is common
law and, as such, no doubt, capable of some practical

development.

Yesterday, there were some submissions made

about the passage in volume I at page 176. The tape

has been played to the solicitors for the parties over

the telephone and what I am instructed it reveals is

this: that the magistrate - first of all, the word

"at" should be inserted after the word "sorry" in

line 19. After the word "exists" the magistrate

continued to read what is apparently a quotation -

DAWSON J: This page, Mr Bennett, is?

:MR BENNETT: Sorry, Your Honour?

DAWSON J: Page?

:MR BENNETT:	Page 176.
DAWSON J:	Thank you.
:MR BENNETT:	Then, he continued to read and then, immediately

before the words "abuse of process", he added the

words "my words" and then proceeded as appears here.

So, we would submit what he was doing was simply

continuing the quotation but, in effect, adapting it

into indirect speech to put his words into it but it

was substantially, we would submit from that, clearly

part of the quotation. We cannot tell, of course,

at what moment he put down the book he was reading

from but, I would submit, that supports my submission

yesterday that, really, the whole of the passage was

the passage being, in substance, read from the case

although converted to the magistrate's own words.

That explains the conversion from'tlaimant" to

"defendant'.' and so on.

indicated to me that it was for me to establish 1 that Your Honour the Chief Justice, at page 11

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there was inherent in the magistrate in his exercise
of connnittal power in relation to connnittal proceedings

power to stay proceedings for an abuse of process in

those proceedings.

In relation to that matter, I make five submissions.

The first is that we rely on the decision of this Court

in ELECTRIC LIGHT & POWER SUPPLY CORPORATION LTD V

ELECTRICITY COMMISSION OF NEW SOUTH WALES, (1956) 94 CIR 55

This is a decision which has been cited by this Court on quite a number of occasions recently. It is a unanimous

decision of all seven Justices of this Court in 1956

and the relevant passage connnences at page 559, line 3.

(Continued on page 43)

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MR BENNETT (continuing): Their Honours there say:

Section 3 of the PURCHASE ACT takes the course of referring a particular matter for hearing

and determination to an existing court

established as part of the judicial system of

the State, the proceedings of which are

regulated by a statutory enactment and a
body of rules, and the authority of which is

amplified by some, and qualified by other,

provisions of the enactment, one qualification

being the duty to state a case upon a question

of law if required by a party.

That body, of course, was the Land Evaluation Court.

When such a course is adopted it is taken to

mean, unless and except in so far as the

contrary intention appears, that it is to
the court as such that the matter is referred

exercising its known authority according to

the rules of procedure by which it is governed -

and I stress these words -

and subject to the incidents by which it is

affected.

Then there are some passages referred to from

NATIONAL TELEPHONE COMPANY. The passage from

Viscount Haldane is general; he says:

When a question is stated to be referred to

an established court without more, it, in

my opinion imports that the ordinary

incidents of the procedure of that court are to attach, and also that any general

right of appeal ..... attaches.

Lord Parker and Lord Shaw both stated the principle

in terms of a court of record but, of course, they had no

need to consider the question whether it extended

to a court other than a court of record. It then

goes on to refer to a number of Indian appeals where

Lord Simonds, at the bottom of the page, said:

"The true rule is that where a legal right

is in dispute and the ordinary courts of the
country are seized of such dispute the courts

are governed by the ordinary rules of

procedure ..... and an appeal lies.

Then, finally, in the middle of page 560, Their Honours

point out how general the rule is by referring to

its basis. They say:

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It may be remarked that the rule or principle

invoked is but an expression of the natural understanding of a provision entrusting the decision of a specific matter or matters to an

existing court. It is no artificial presumption.

When the legislature finds that a specific

question of a judicial nature arises but that
there is at hand an established court to the
determination of which the question may be
appropriately submitted, it may be supposed
that if the legislature does not mean to take
the court as it finds it with all its

incidents including the liability to appeal,

it will say so. In the absence of express

words -

et cetera.

DAWSON J: That really does not take your very far, does it?

Is there any authority which establishes that a court,

which is not a superior court, has an inherent

jurisdiction? Because the two terms are contradictory,

really.

MR BENNETT: 

Yes, there are a large number of cases referred to

in the judgment where courts of that sort have been
held to have inherent jurisdiction in relation to
matters like setting aside subpoenas and preserving

order, and so on.  May I remind Your Honour of

those? They are set out in volume II at page 276.

DAWSON J: 

Yes, I know those but not one of those establishes that

a magistrate's court has an inherent jurisidiction.

It is suggested by the decision of Mr Justice Rath,

I think, but that, of course, was in a trial

context.

MR BENNETT: 

Yes, MILLER V RYAN.

DAWSON J: 

And if a magistrate's has an inherent jurisdiction,

where does it come from?

MR BENNETT: Well, it comes, Your Honour, from the general

doctrine of the law which appears in various areas

of the law that where a power is conferred there

is conferred with that power incidental power

to do all things necessary or convenient to enable

it tobe exercised.

DAWSON J: Yes, but that would not extend, would it, to staying

the processes?

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MR BENNETT:  1 would submit it does. If that is a power

which it has been thought necessary to imply

in relation to superior courts, no doubt because
of that general principle to which 1 have referred,

why, one asks rhetorically, should it not apply to

inferior courts.

DAWSON J:  The difference is the difference between an

implied power and an inherent power.

MR BENNETT:  Yes, but the power - this is substantially an

inherent power, we would submit. Let me take the example of particulars. It has been held to be an

inherent power in a magistrate to order particulars

and no doubt, if the particulars are not provided,

to order a stay.

DAWSON J:  That is an incident of the exercise of the

jurisdiction. This is different.

MR BENNETT:	Your Honour, in my submission, if one finds one's process being abused it is an incident
of the exercise of the jurisdiction constituted
by that process to be able to say, "I will not
proceed.  I will stay the proceedings because they
are an abuse of my process".  If the police come
before a magistrate - to take a totally whimsical
examp1e - and say to him, "We wish to prosecute a
man for a SO-year-old offence of exceeding the speed
limit by one mile an hour", and, "We have the evidence of that because he admits it in a book he wrote on some unrelated subject", and, "This is being done because he is a man who has been
harassing the police and we admit that and we are
simply doing it out of malice but we have the right to do it and here it is. Exercise your powers",
he must have an inherent jurisdiction to say,
"This is an abuse of my process.  I will not hear it".
That is no different in its - - -
DAWSON J:	Well you assert that but I do not know of any

authority that says that and 1 do not really see

that it necessarily follows.

MR BENNETT:  Well, Your Honour, it is said by the authorities

on page 276 dealing with other aspects.

DAWSON J:  There is some reference to it, but there is no

decision which establishes the proposition.

MR BENNETT:  There is no decision which puts together the two

lines of authority - I would put it that way,

Your Honour - except MILLER V RYAN, and except the

unreported decisions referred to earlier at

pages 269 to 270, that is a range of decisions in

relation to the magistrate's power in this area,

but most of those are dicta.

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DAWSON J:  I cannot point to it at the moment, but there is,

is there not, a lot of authority saying that an

inherent jurisdiction is something that is confined

to a superior court?

MR BENNETT:  Your Honour, some of the authority on inherent

jurisdiction limits it that way, some statements of

the rule do not and the three passages which were

cited in ELECTRIC POWER indicate that in the same

case. There are the recent English cases,

REG V BRENTFORD JUSTICES EX PARTE WONG for example,

(1981) QB 445, referred to at page 272 line 7,

which is a case where an English magistrates court

was held to have power to stay proceedings for

an abuse of process - that was not commital proceedings,

it was summary proceedings - and there are the

remarks in HUMPHRYS where at least some of

Their Lordships thought that magistrates had that power, and there are, I think, a number of other

English cases referred to in WONG's case where

there has been a reference to it.

So the assumption seems to be in England that magistrates do have the inherent power and - -

BRENNAN J:  It is a substantial qualification upon the

prima facie duty of a statutory tribunal to exercise

the jurisdiction that is vested in:it.

MR BENNETT:  Your Honour, it may be substantial 1n some

cases but it is no more substantial as a
conceptual matter than a power which says that

the magistrate can order particulars and if they

are not given stay the proceedings.

BRENNAN J:  That is a case where the exercise of the power

is in aid of the exercise of the jurisdiction.

Your proposition is that the power may be exercised

to avoid the exercise of the jurisdiction.

(Continued on page 47)

.

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MR BENNETT:	Your Honours, I would submit, with respect, that is a distinction that does not flow through.
If one has a power to say, "I will not proceed
unless particulars are supplied.", one can characterize that as exercising the power of
determination. One can also characterize it
as a refusal to proceed further with the jurisdiction. And, indeed, if it were improperly
exercised, no doubt mandamus would lie.

BRENNAN J: If one looks at JOHNSON V MILLER, that is not

the way that it happens. The way in which it

happens in such a case is that the proceedings

are dismissed. In other words, the jurisdiction

was exercised to finality.

MR BENNETT:  Yes, but in a sense, contrary to the statute.

BRENNAN J: Not at all.

MR BENNETT:  Because if the Crown says, "We have our

evidence, we'll put it before the magistrate

and we won't supply particulars.", and the magistrate

says, "Well, in that situation I will dismiss.",

he is acting contrary to a statute which says

that if he forms a view of the evidence he must

take a different course.

BRENNAN J: That may be a different question if the statute

directs the contrary exercise of his power.

MR BENNETT:  The way we put it is that when the statute

gives that direction it gives it, as in the

ELECTRICITY case, subject to all incidents and

one of the incidents is the inherent power to say , "Unless particulars are supplied I will dismiss or stay." or whatever he does and another

is to stay for abuse of process in the extreme

case. Otherwise, one permiu..abuse of process

to continue and, in my respectful submission,
there is an important public policy in preventing
that.

There is not a total dearth of authority.

There are the recent English cases referred to

on page 272, there is the decision in MILLER

V RYAN and there is also the ability to put

together the two principles which is the way

which we put it. And, in my respectful submission,

that is the appropriate way to - - -

MASON CJ:  Mr Bennett, you have spoken as if the magistrate

was sitting as a court, was that so?

MR BENNETT:  Your Honour, that depends in part on the

problem Your Honour referred to in SANKEY V

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Grassby

WHITLAM as to whether it is totally accurate to

describe him as administrative not judicial for

all purposes. The truth is, we would submit,

that he is for certain purposes administrative,

for certain purposes has to act in a judicial

manner, and for certain purpose he can be described

as sitting as a court, even though the ultimate

function may be an administrative one.

MASON CJ:	But he is not sitting as a court here, is he?
MR BENNETT:	Your Honour, in the strict sense of the word, no, but the word in recent cases is used very
loosely and even if he is exercising only an administrative power, why should it not be inherent
in an administrative power that an abuse is
prevented?

MASON CJ: That may be so but that is another question

and if it is another question it does not seem

to me the cases on which you have relied help

us very much at all. When you look at section 13

of the JUSTICES ACT you look at the proviso to

subsection (1), it does seem that the legislature
is proceeding on the footing that a magistrate

or a justice in a committal case is not sitting as a court but is exercising ministerial powers.

MR BENNETT:  Yes. I have conceded that as a matter of

strict analysis, that is so, but it does not

follow from that that the inherent power which

is necessarily inherent in the grant of any power

to do things reasonably incidental to· it does

not extend to this sort of activity and one does

not answer that by saying, "Because the power

is ministerial cases where courts have been held to have these powers do not apply." The correct

approach, we would respectfully submit, is to

go back a step and say, "Why has it been held

that courts have these powers? Do those reasons

apply equally to a magistrate exercising ministerial

power?". And if one does it that way, one reaches

the conclusion that the same principles should

apply.

(Continued on page 49)

C 2 T 1 1 / 2 /ND· 48 12/4/89

Grassby ·

MR BENNETT (continuing):  So, the first of the five matters

is the ELECTRIC LIGHT case; the second is MILLER V

RYAN which I took Your Honours to yesterday and I

will not take Your Honours back to; the third is

the decision of the Court of Criminal Appeal in
this case and the fact that there is no challenge
to its decision by the Crown and, indeed, we

ohserve - if I could iust hand Your Honours two pages from a learned articl~.in.57 ALJR by my learned fri~nd, Mr Mason, this article being

one of the few on this topic.

MASON CJ: Perhaps he has become a wiser man since then,

Mr Bennett?

MR BENNETT:  Your Honour, it accords with the submissions being

made on both sides, on this topic. At page 456, in

the second column, he says:

Although all courts in Australia,

including the Supreme Courts, are creatures

of statute, not all are superior courts in

the sense that their decisions, even in

excess of jurisdiction, are valid unless

and until set aside. However, except for

those instances of the inherent jurisdiction

ancillary to the Supreme Court's role as a

supervisor of inferior courts and tribunals,

one would have thought that inferior courts would have as wide an inherent jurisdiction

as that of superior courts. After all,

"':b.herent jurisdiction' is the power which a

court has simply because it is a court of a

particular description, [itJ is not something

derived by implication from statutory provisions
conferring particular jurisdiction".

And that is the point that was being put to me a moment ago.

Judges of inferior courts should have the same

concern to prevent abuses, delays and injustices

as judges of superior courts. Generally speaking,

the authorities support these propositions.

Thus, it is established that an inferior court

may devise procedures and make rules to ensure

the proper determination of issues before it,

strike out pleadings or decline to hear

proceedings on the ground that they are an

abuse of the process of the Court.

The authorities cited for that are listed there. It

is principally the last two of those which are of the

greatest assistance. EDGAR V FREEHAN and MILLS V

COOPER are very much passing references; MILLER V

C2Tl2/l/SH.	49	12/4/89
Grassby

RYAN, of course, is directly on the point and

GRAYS JUSTICES is in the recent English line of

authorities to which I have referred to, the same

line as the WONG case and then other examples:

or contravene the broad principles relating to double jeopardy, set aside a decision if

a person affected by it has been denied

natural justice and control practice,

procedures and conduct in court. In principle

there seems no reason why inferior courts
should not exercise most of the powers

discussed in this article.

And we respectfully adopt what the learned author

says.

The fourth matter is that we do not merely rely

on the authority of the Court of Criminal Appeal but

we remind Your Honours of the whole of the passage

in which the Court of Criminal Appeal analyses this

question and comes to a firm decision and it puts,

perhaps more clearly than I have done the two

principles, the way they are put together and it,

in an encyclopaedic way, lists all the relevant

authorities and it would be otiose for me to take

Your Honours through them but, in the passages,

particularly at 271, 272, 273, 274 and 275, the

court very clearly puts the argument and we rely

on the cases and reasoning put forward there.

Fifthly, there is the policy question. If one

regards it as an area in which there is no authority,

and one then has to say, "Is it desirable that

magistrates should exercise this power?" one would

take into account a number of matters.

(Continued on page 51)

C2Tl2/2/SH	50	12/4/89
Grassby

MR BENNETT (continuing):  The first is the undesirability of

multiple determinations of the issue. If the magistrate

can find an abuse of process and that is the conclusion

to which he comes why should he not be able to stop

the proceedings there and then. Secondly, it is not

a final determination so if a magistrate does, in the
exceptional case, make a decision which is not

accepted by the Crown there is the exceptional power

to have an ex officio indictment and then have the

matter determined by the trial judge. Indeed, if

I can anticipate a future argument, if the magistrate

is going to do that the best time to do it is at the

end of the committal where there can no longer be a

suggestion that the accused has been denied his rights

so that the accused will not be able to say if the

Crown does that, "I have been denied the right to
a committal at which the prosecution witnesses can

be cross-examined."

What the magistrate does is to record his view,

having heard all the evidence, having seen what is

presented, that there is an abuse of process been

committed. He records that by saying, "Where a moving

party comes to a tribunal" - to use a neutral word -

"and that moving party is affected by abuse of process

the tribunal will decline to proceed further." By

exercising that power the magistrate makes his position

known and requires the Crown, if it is going to proceed,

to accept the political consequences of proceeding.

Your Honours saw in the Hansard, which I took you to,

the importance placed by the government of New South
Wales on the need to achieve speedy justice in

criminal cases and on the need to prevent an excessive

number of persons being committed for trial.

If there is an abuse of process and if the result,

or the likely result, at the trial is that the trial

judge will say, "There is an abuse of process.", why

should, one asks, one go through the step of having

the magistrate bound to commit and then the Crown

forced to take the step of saying, "We will pronounce

a no bill."

DAWSON J: 

But it might be the other way round, the Crown

may in fact indict and if the magistrate had said
he was not going to proceed at the beginning of the
proceedings then the accused would not have the benefit
of committal proceedings?

MR BENNETT: 

That would be a fact that a magistrate would take

into account and, indeed, be a reason why he might
well choose to do what was done in this case.

DAWSON J: 

But is it a matter that is a choice for him? It is really

the choice, as you are saying, the choice whether to

indict or not is not a choice for him.

C2Tl3/l/MB	51	12/4/89
Grassby

MR BENNETT:  Well, Your Honour, we submit that he is entitled

to make the decision - perhaps this is the way it should

be put. He is entitled to make the decision as to

whether the Crown is going to be forced to act in

a regular way if it indicts and an irregular way if

it does not or, if he makes the other decision, act

in a regular way if it does not indict and an

irregular way if it does. That is a matter with

perceived political difference and the magistrate

has the right to put the Crown in the position where

if it files a bill it is doing so without the political

defence of a committal and that, in my respectful

submission, is the power delegated to him. When

one then looks at that power and says, "Is it appropriate

that a person who has that power should be able to

stay his proceedings where there is an abuse of
process?", it is clear that·he should because the

ultimate decision for the Crown then becomes the

political decision that should be. But where he finds

an abuse of process the Crown ought not to be able
to say, "Well, we make no difficult political decision

because a magistrate committed for trial."

The purpose of the magistrate doing what he has

done here is to make the political decision difficult

and that, in my respectful submission, is exactly

the power conferred upon him by the JUSTICES ACT

in the context in which one operates. We respectfully

submit to say that the Crown simply makes its

decision to file a bill or not in a vacuum and the
existence or not of a committal is simply an irrelevance

to that, ignores the reality of the regime which has

been set up. Once one appreciates that the magistrate's

role in the committal is twofold, one to give the

accused the benefit of cross-examination in the other

procedural aspects - and I suppose threefold.

Secondly, if there is no case to answer to deal with

the matter in that way. But, thirdly, to determine

which way the Crown will have its natural course

laid out for it in making its political decision then,

we would submit, the remedy of staying for abuse of

process - - -

DAWSON J:  I find it hard to accept that the decision to

prosecute or not to prosecute is a political decision.

MR BENNETT:  Well, Your Honour, political in the sense that it

is not made judicially, it is made, ultimately, by

the Attorney-General or by those delegated under him

and it is a decision for which he takes political

responsibility.

DAWSON J:  Taking political responsibility is another thing

from making a ?~litical decision.

· MR BENNETT:  I am sorry, Your Honour, I should have used the

phrase "taking political responsibility", that is

the more accurate phrase. The other phrase is inaccurate.

C2Tl3/2/MB	52	12/4/89
Grassby

I:1R BENNETT (continuing): That, in my respectful submission,

is the regime that is set out. Those are the

matters which arose out of yesterday's submissioll9.

May I return to paragraph 2b on page 2? I

was going through the 12 points on page 181.

I am sorry, there was one other very short matter

and that is that in relation to the passage on

the tape I should point out that the error, if

it be error in saying the issue is whether the

claimant can his right to a fair trial fulfilled

in all the circumstances, involved an adoption,

in precise terms, of a submission put by the

prosecution. If I could have leave to refer

Your Honours to the yellow books which are the

additional exhibits and material from theproceedings

before the magistrate which we filed in the Registry.

MASON CJ: There is no occasion for us to have the yellow books,

is there, Mr Bennett? As long as you just state

what is in what is the relevant passage.

I:1R BENNETT:  Yes, certainly, Your Honour. At page 386 of

volume II, the prosecutor, Hr Newport, made this
submission, and these were in · written submissions filed

by the prosecutor:

The issue is whether the claimant can have

his right to a fair trial fulfilled in all of the

circumstances.

So the very phrase which the Court of Criminal Appeal

criticized the magistrate for using, although we

say it was used in a quotation, in fac~ came from

the prosecutor's submissions.

BRENNAN J: When was that submission made, Mr Bennett? At

what stage of the proceedings?

I:1R BENNETT:  It was at the final stage on 26 May 1988 where

the prosecutor was making submissions after the

invitation by the magistrate to both sides to make

them. It is point 7 of the page.

Now, the12 points, then, are on pa_ge 181

and they start at line 15. The first is:

the fact that it should have been finalised

many years ago, but wasn't.

Now, the evidence was that ultimately the only

publication relied on against Mr Grassby was that he

handed a four-page document to Mr Maher, a member

of Parliamen~ and that was the only publication that

was alleged to constitute an offence by Mr Grassby.

The only other publication that he was said to have

engaged in was a communication to Mr Sunmer, the

Attorney-General of South Australia. Apart from

C2Tl4/l/VH	53	12/4/89
Grassby

that it was not suggested there was any communication.

The magistrate found that there was no communication

by Mr Grassby to the press.	The conversation with
Mr Maher was the subject of a dispute.	Mr Maher's

recollection was that Mr Grassby had said, in effect,

"This is a document which should be read in

Parliament and you should read it notwithstanding

any points of order which are taken." Mr Grassby's

evidence before the National Crime Commission, which
was tendered against him, was simply that he had

given it to Mr Maher as something which might be used

in Parliament. That was the only publication and the

only statement. That took place in 1980.

Subsequently, there was a publication in the

Sun-Herald of what one might call the non-defamatory

parts of the four pages; in other words, all the

material about where Mr MacKay went, at what time,

and the general matters suggesting that the professional

killer theory was not correct. Might I hand to

Your Honours an affidavit which simply annexes the

exhibitsbefore the magistrate - it annexes a number

of exhibits. It is an affidavit of Gordon Charles Annakin,

sworn on 10 April. I ask leave to hand it to Your Honours

just for the purpose of showing Your Honours the

exhibit which appears there because this relates

directly to the one the matters the Court of Criminal

Appeal said about the delay question.

(Continued on page 54)

C2Tl4/2/VH	54	12/4/89
Grassby

MASON CJ:  Does i~ g6 to the point that you make in 2b

of the outline of submissions, Mr Bennett?

MR BENNETT:  It goes, Your Honour, to the point I am making

in paragraph 4 which I am incorporating, while I am

dealing with 2a and 2b. I am dealing with it more

conveniently while I am going through the 12 points

to save time later on, and what it goes to is the

Court of Criminal Appeal said there was no

suggestion when the documents went to the police

in 1980 that there was any need to look at the

criminality or otherwise of those who passed the

documents on, and I am tendering this to show that

there was a front page article in the Sun-Herald

which raised that very issue and suggested it was

a matter for investigation and that was before

the magistrate.

MASON CJ:  Yes. Do you have any objection, Mr Solicitor?

Yes, very well, Mr Bennett, we will receive it.

MR BENNETT:  If Your Honour pleases. Your Honours see

that annexure Bis the front page of the Sun-Herald

on August 10, 1980. There is a photograph at the

top of part of the four-page document, there is a

summary of some parts of it on page 1 and it

at the bottom of page 2 of the Sun-Herald under the heading "Suspicions on motive" and beside a picture of Mr Bottom, there are these words:

continues on page 2 under the heading "Twist in

'

Crime Investigator Bob Bottom said last

night there were firm grounds for a

reopening of the Mackay investigation.

But he said he suspected the motive

behind the document was attributed to

disgruntled police involved in the

investigation.

"If the document is an attempt to

whitewash any involvement by the Italian

Mafia minority that indisputably operates

in Griffith, its promotion itself may also

be worth of investigation," he said.

Now, in relation to that subject the Court of it would normally have occurred to the police to

investigate was the content. At page 289 line 10

the Court of Criminal Appeal says:

It was the content of the document, not

the circumstances in which Mr Grassby

published it to him, which led him to pass it on. It could only have been

C2Tl5/l/HS	55	12/4/89
Grassby

the content of the document which had

apparent relevance to the police.

And higher up on that page in line 3:

Even to an investigator with some

circumstances -

knowledge of the law of criminal
defamation, there was nothing put
before the police to direct the mind of

such an investigator or his questions to

and I will ·come to those -

of which Mr Maher and Mr Sumner

subsequently gave evidence.

So, so far from it not being before the police it had been on page 2 of the Sun-Herald in terms which

can hardly fail to have come to the attention of

any investigators at the time. So the magistrate

was fully justified in saying, "If anything was

going to be done it should have been done in 1980".

The second of the 12 reasons is on page 181,

line 16:

Secondly, the only reason it's presently

before the court is because of another more

serious charge from which the defendant

has been discharged -

I have dealt with that:

Thirdly -

this is one of the two relating to the trial which

would go if Your Honours were against me in what he

is entitled to look at -

the further delay involved. Fourthly -

this is the other -	the cost to the public of running such a trial. Fifthly, the considerable personal
harm suffered by the defendant as a result
of evidence given on a charge which has
been dropped -

as I said, there was wide publicity at the time and

Your Honours can imagine the effect of that.

Six, the fact that it was highly unlikely

that the defendant would have been charged

with this matter alone at any time since 1980.

C2Tl5/2/HS	56	12/4/89
Grassby

That is the point I was making yesterday about

the difference between bringing this arcane
charge of criminal defamation in a case where
one makes the criminal defamation to assist
murderers to escape justice and bringing it

where it is simply an excess of zeal by a public

officer:

Seven, the seriousness of the principal charge and the dubious nature of the evidence regarding that, has so coloured events that this particular charge, although technically available, should

really have fallen with the principal

charge.

(Continued on page 58)

C2Tl5/3/HS	57	12/4/89
Grassby

MR BENNETT (continuing):  I summarized to Your Honours

yesterday one matter from the yellow book. May

I just mention two other matters without taking

Your Honours to them; I will give Your Honours

the references if Your Honours wish. The first is

that at pages 17 to 18 the witness describes how,

at the request of a police officer, he destroyed
every document he had in his possession in a

bonfire because he was advised by the police

that there might be a subpoena served. He also

describes there how before he did that he used

an optical reader to put the material on to his

computer and he says he has done that because

computers cannot be subpoenaed, in effect, and

the police officer then says, "I think they know

you've got a computer.", and there is a discussion

about that.

A few pages further on, where his evidence

changes in the course of discussion about the

precise location of one of the two occasions

when he said he had seen Mr Grassby, he says:

So now I have to fix up this marvellous

little program I've got in me computer to

search out every, every time in the statement

it says Ultimo Road and insert the words

every time it says Bay five.

P: Bay five, yeah.

T: 8 Ultimo Road.

P: They're magic machines, aren't they?

So there was very serious evidence of this continual

process going on. The other passage which is

of some interest is that, having set out
what the witness regards as tactical considerations

as to whether Mr Grassby will give evidence and

what defence he is likely to make and so on, he says, at page 50:	this is, the amount of thought I have to
put in after six or seven years.
P: Mmm.
T: See I know what was said and in my head
it's there instantly, but I've got to get
it out into paper.
P: Mmm.
T: Do you understand the difficulties of
that? And um, if you're going to brick
someone you've got to brick them properly.
.

C2Tl 6/1 /ND	58	12/4/89
Grassby

To which the police officer says:

P: Love bricking.

There are various other matters like that.	The
importance of it is that this was no ordinary

case of perjury. This was a very serious case

in which the only witness to the most serious

allegations against a public figure which were

reported daily in papers throughout Australia

was a witness who not only was a heroin dealer

who would be given indemnities but also was a

man who had spent hours and hours working with

police officers to prepare and to develop a story

which would assist them on the case. And the

yellow book demonstrates that very clearly, as

does the magistrate's earlier judgments. But

this was a serious abuse.

Then he says:

Eight, the fact that as a defamation

occurring eight years ago, it seems

inappropriate to be responding to it even
on a limited basis, with the charge standing
alone, particularly when a civil action

against Mr Grassby for defamation, has

successfully concluded and on the effect

on the community of an event in 1980, has

long since passed.

That is the triviality point which relates to

the fifth of Mr Justice Kirby's matters.

Nine, the perceived unfairness that resulted

to Mr Grassby from giving evidence in the

way that he did, to the Nagle Special Commission

of Inquiry and what has flowed from that,

and the perceived unfairness of requiring

Mr Grassby to give evidence to the National

Crime Authority in August 1987, when, on

Smith's evidence, it must have been quite

apparent at that stage that he was, or ought

to have been charged with the matters now

before the court.

That is the other matters, of course.

Tenth, the fact that at the time in 1980,
the article was published to only a very
few people, receiving wide spread publication
of its non defamatory aspect in the Sun
Herald, which on balance I would find

Mr Grassby had nothing to do with.

So he is not suggesting he is responsible for

that.

C2T16/2/ND	59	12/4/89
Grassby

The ~ict that it achieved greater publicity

through the hearings and report of the Nagle

Special Commission of Inquiry some six years

after the date the prosecution says the

offence occurred. Eleven -

and this is the actual prejudice, and Your Honours

will recall there is one conversation, the only

directly relevant evidence of the offence is

the disputed conversation between Mr Maher and

Mr Grassby, and, in parentheses, anyone with

any experience of trial courts would know that

to find two versions of a conversation in 1980
having anything in common would be amazing, let

alone to be able intelligently to work out what

was said.

(Continued on page 61)

C2Tl6/3/ND	60	12/4/89
Grassby

MR BENNETT (continuing):  But His Worship says:

The fact that witnesses' recollection of

events and the constellation of documentary

material has suffered by the long delay and

will suffer further. One only has to look

at Mr Maher and Mr Stephen's evidence,

trying to recall events seven years

earlier. Had the matter been dealt with

then, this evidence may have been more

precise and Mr Stephen's evidence may

have been backed by notes taken by him but

long since destroyed. The question of a

letter accompanying the defamatory document

to Mr Grassby's office may also have been

easier to investigate. I also note that

had the matter been prosecuted in 1980,

it would have been without the 'benefit'

of Mr Smith's evidence. Twelve, there is

no suggestion properly available, that

Mr Grassby had anything to do with the

delay that has occurred or that there has

been any impropriety on his part.

And he refers to the impropriety of Smith and so on.

He then says:

This charge is technically divorced from

the conspiracy charge, it was part and parcel

of it, an alleged overt act involving

Mr Grassby and the Sergis, and thus to my

mind, sufficiently tainted so that to allow

it to continue would be to take advantage of

a technicality to the disadvantage of the

defendant.

He then goes on with the passages I have read before.

Now, in my respectful submission, those are good,

valid, strong grounds for a finding for abuse of process.

It was one which he could not make at the beginning of
the proceedings.	The sequence of events was that

Mr Smith went into the witness box in the case in-chief.

He gave evidence. He was cross-examined and, at the

end of the Crown case, the magistrate found a case to

answer and Mr Smith's evidence was strong and firm

and, no doubt, impressive. Then, as a result of

some subpoenaes, the documents being exhibits 67 and

68 at the front of the yellow book, the transcripts

of the interviews with the police were found. Police

officers were called. Mr Smith was recalled and the

magistrate formed a very different view of his

evidence, having seen him give evidence a second

time when confronted with that material.

C2Tl7/l/SH	61	12/4/89
Grassby

So, it is a case where the full extent of the

abuse or a large part of it was not apparent to the
magistrate prior to that. Also, the magistrate

could not know the extent of the effect of loss of

memory by key witnesses, by Mr Stephens and Mr Maher,

until he had seen them in the witness box. So,

again, the abuse of process would have been very
hard to judge at the beginning of the case; the

extent of prejudice would not be known and the major aspects of the abuse would not have been known. All

that was known was the eight years and that was held

by the magistrate not to be sufficient when he

dismissed the earlier application to stay for abuse

of process.

So, the time when the application was brought,

even at the magistrate's suggestion, was totally

appropriate if one accepts the earlier submissions

as to his ability to make an order of this kind and

as to the matters he can take into account.

That brings me to the third matter, the evidence

of Mr Stephens. That is very short and it, really,

ties in with what I have just said. The evidence of

Mr Stephens was he was the author of the Sun-Herald

article. The article attributes the information to

Mr Maher.	Mr Maher's recollection was that he had
not given it to Mr Stephens.	Mr Stephens' recollection

was that he was not able to recall who gave it to him

but he is sure it must have been Mr Maher because he

would not have said so in the article otherwise and

he does not recall there being any complaint about him

attributing it in that way.

Now, the Court of Criminal Appeal says, "That is not important because the Crown is not going to

rely on any publication in the Sun-Herald". That

was not of the defamatory aspects. The magistrate

found Mr Grassby was not responsible for that and

the Crown does not rely on it. But, of course, any

conversation between Mr Maher and Mr Stephens would

have been of very great relevance in assessing the

probability of what was said in the conversation

between Mr Grassby and Mr Maher and in determining

the truth of one version or the other as a matter

of accurate recollection and that benefit is now·

denied because of the passage of time to Mr Grassby.

Mr Stephens does not remember and Mr Maher's

recollection is not the best and he is in the position

where a criminal charge is to be brought against him

to be heard now, I suppose, nine or ten years after
the event but, at the committal, eight years after the

event, on the basis of one conversation as to which

recollections differ.

C2Tl7/2/SH	62	12/4/89
Grassby

MR BENNETT (continuing):  In my respectful submission, it is

a classic abuse of process to put a man on trial for

that, especially when the matter is not a serious

matter for the reasons given by the magistrate.	The
charge was brought because it was thought to be a
serious matter because of its relation to other
matters which are now gone and, we would submit,
that in relation to Mr Stephens clear prejudice is

shown and the Court of Criminal Appeal was wrong to

have regard to the fact that the Crown does not

intend to rely on that aspect at the trial. I have

dealt with the matter of when time cormnenced to

run.	The Court of Criminal Appeal said it cormnenced
to run after the various inquiries in 1987.	I have

shown Your Honours what was said by Mr Bottom at the

time to as wide an audience, no doubt, as it is

possible to reach, including the police officers.

We remind Your Honours that so far as the

applicant's advisers have been able to ascertain

there has never been a case of defamatory criminal

libel as opposed to blasphemous or seditious libel

brought in Australia by the Crown since Federation.

There have been private prosecutions in recent years

and Your Honours have heard about those. The only

one we found before Federation is one in KING V REG, which I have referred to in the submissions, in 1876

in Victoria. But that fact is surely relevant in

assessing whether, in all the circumstances, these

proceedings are an abuse of process.

Now, the final matter concerns the application

to disqualify Mr Justice Hunt. May I first take

Your Honours to what was said in a reported decision

called WATERHOUSE V GILMORE, 12 NSWLR 270. There

were proceedings for criminal defamation which came on

and there were orders sought for mandamus directed

to cormnittal proceedings in relation to that matter.

Mr Justice Hunt at pages 287 to 288 dealt with the

role of criminal defamation. At the very bottom

of 287 he said:

There is a vast difference between the functions

of the criminal law and that of the civil law.

A private prosecution for criminal defamation

is justified only where the subject of the prosecution

is such as to affect the cormnunity; it has nothing

to do with vindicating or with protecting the

reputation of the person defamed.

Just stopping there, of course, in this case the

protection of the cormnunity was involved because of

the confl)iracy aspects no longer pressed.

A squabble between individuals is not the

proper subject for such a prosecution ..... The

present case is unfortunately yet another example

C2Tl8/l/MB	63	12/4/89
Grassby

of the threat to free speech raised by private

prosecutions for criminal defamation.

He refers to SPAUTZ V WILLIAMS and refers to Dr Spautz

"being declared a vexatious litigant."	He refers
to the Gypsy Fire case.

MASON CJ: 

Do you need to go through all this?

MR BENNETT: 

Only to show the context, Your Honour, which I

am leading to because my point about this, my principal
point, arises out of the context. Having said all

that and having shown how undesirable criminal

defamation is he then says at F:

A prosecution has also been brought by the

appropriate public authorities -

I just draw the distinction between private prosecutions and public prosecutions -

against Mr A. Grassby, the former politician -

a slightly derogative phrase but, no doubt, there are
other ways of putting it -

in relation to his publication of grossly

defamatory statements concerning the widow of

Mr Donald McKay (the Griffith drug campaigner),

following Mr Grassby's successful (but hardly

meritorious) claim that her right to recover damages

from him was barred by the LIMITATION ACT 1969.

That prosecution is obviously an appropriate use

of the criminal law, as the fact of the publication

by Mr Grassby and the extraordinary circumstances

surrounding it were not discovered until a

statutory inquiry was held after the limitation

period has expired.

But that is the only defamation case in which

it could possibly be said that the use of the
criminal law has been appropriate.	In none of the

other cases would leave to prosecute have

been granted.

(Continued on page 65)

C2T18/2/MB	64	12/4/89
Grassby

DEANE J:  At what stage were the connnittal proceedings,in

December, January 1987, 1988?

MR BENNETT:  I think the hearings had not started; they had

been listed for mention and adjourned, as I recall

it; he had been charged.	But the proceedings -
the first day of the hearing	had not occurred yet.

DEANE J:	The connnittal was pending?
MR BENNETT:	Yes, it was pending, yes, Your Honour. Now~ say three

things about that statement. The first is that

it is inappropriate for a judge to make a statement
giving his opinion in relation to a pending
criminal proceedings. Indeed, had a statement like

this been made in the newspapers, there may well

have been other consequences and we would submit

it is totally inappropriate for a judge to make

a statement like that in a judg~ent. Of course, a

judge may give examples where he wishes to make

a point and he may do that by reference to current

events or by reference to past cases. This goes

far further than giving an example. This is a

case where he specifically goes out of his way to

say, "There are pending criminal proceedings which

are obviously appropriate." That is the first

matter.

The second matter is that emotive language

is used. There is reference to "grossly defamatory

statements," a "hardly meritorious" claim, "obviously

an appropriate use", "extraordinary circumstances",
and even the slightly - and I do not put great weight

on this - derogatory phrase, of "former politician".

He does not say a "former cabinet minister", he

does not say a · "former Connnissioner of Community

Relations". He.. uses a word he does not need to use.

That is the second aspect.

The third aspect, and perhaps the most important

aspect is that it was a prejudgment in extreme terms

of the very issue that came before His Honour in

this case. The point being made by His Honour-

this is why I took Your Honours to the context -

i£ that normally, cri~inal defamation

is not a charge wnich should be encoutaged;

it is not·._a crime which hould be ·. -

prosecuted except in very limited circumstances.

One of those circumstances, he says, is where the

civil defamation is statute barred and therefore

one needs to use the process of criminal defamation

to avoid unmeritorious problem that the civil

defamation proceedings are barred by the STATUTE ·oF

LIMITATIONS.

So the fact that it is six years old is,

His Honour says, a justification for bringing proceedings

C2Tl9/l/VH	65	12/4/89
Grassby

for criminal defamation and specifically, in the
case of Mr Grassby, the fact that they are more

than six years old is the very reason they are

justified. Having said that publicly, His Honour

then is asked to disqualify himself in a case

where the issue is, is there an abuse of process

substantially because of the delay which has

existed?

In my respectful submission, one could hardly

have a clearer case which fits the test laid down

by this Court in a number of cases, particularly

LIVESEY's case, as to whether a fair-minded member

of the public would have a reasonable apprehension

and His Honour would not bring an unbiased mind

to the litigation.

(Continued on page 67)

C2Tl9/2/VH	66	12/4/89
Grassby

MR BENNETT (continuing):  Now, there is one authority which

is perhaps more directly in point than the recent

line of cases in this Court, and that is the decision

of the Full Federal Court in REG V MAURICE EX PARTE

THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY,

(1987) 73 ALR 123, and I should say that an

application for special leave to appeal from

that decision to this Court was refused.

MASON CJ:  On what ground, Mr Bennett? Do we know on

what ground the application for special leave

was refused?

MR BENNETT:  Yes, on the ground that it involved matters

of fact peculiar to the particular circumstances.

That was a case where - the Court, of course,

applied, at page 125 point 5 the familiar test from

WATSON's case and LIVESEY's case which I have just

outlined - that was a case where in the course of a

land claim the Aboriginal Land Commissioner made a

number of remarks critical of the bona fides of the

Northern Territory Government in a context where there had just been an election called and where his

counsel assisting had been the campaign manager for

one of the parties and a witness in the case was the
campaign manager for the other party and the result

of his remarks was that the Leader of the Opposition

called on the Premier to resign.

His Honour referred to questions about some form

of patronage going on in the territory when it was

found there was no real basis for making that

statement. He said things like, "It's a government

which calls itself a government for the territory,

but it's not". He said, "People get the government

they deserve", and remarks of that sort a few days

before an election, and then there were further

matters where his counsel assisting went on

television, made a statement saying, "The government

had tried to shut the judge up", and the judge then

said, "He went on television with my full approval",

and there were a series of events like that and

ultimately the Full Court said - I am sorry, and

there were two applications to disqualify, one in

relation to the land claim in which the remarks were

made and one in relation to the Kenbi land claim -

which Your Honours would no doubt be familiar with,

it having been to this Court on a number of

occasions - in which the bona fides of the Northern

Territory Government were directly in issue because

there was a challenge to regulations which extended

the area of Darwin.

The Full Court said in relation to the land claim in which the remarks were made it would not

disqualify because there was no issue as to the

government's bona fides or anything relating to it

in that case and therefore there was simply no reason

C2T2O/l/HS	67	12/4/89
Grassby

why the perceived apprehension of bias would affect

His Honour's ability to decide that case, but in relation to the Kenbi land claim where the issue was the bona fides of the Northern Territory

Government and that was a matter His Honour had

specifically dealt with, in relation to that land

claim he would be disqualified and an order for

prohibition was accordingly made. That appears

at the top of page 144 and they then applied the
test at the top of page 146 saying:

Having considered all the material before us, it is our opinion that it might reasonably be apprehended by a fair-minded person that the Commissioner might not

resolve the questions ..... with an

unprejudiced mind.

DEANE J:  Mr Bennett, does it appear whether counsel 1n

WATERHOUSE had raised Mr Grassby's case?

MR BENNETT:  I do not know. It does not appear from the

report because counsel's submissions are not

recorded, but I just do not know the answer to that.

DEANE J:  I mean, one can imagine perhaps one side saying,

"This is an example", and the other saying, "No,

that's different".

MR BENNETT:  Well, Your Honour, we say two things about that.

First one would not attribute to counsel, without

knowing,the making of a submission like that which

DEANE J:  I was just asking the question whether -

MR BENNETT:  No. I do not know, Your Honour, but if that

were the case - - -

DEANE J:  Had the document become public knowledge at this

stage?

MR BENNETT:  Yes. It became public knowledge during the

various hearings in 1987.

DEANE J:  Of the commission?

(Continued on page 69)

C2T20/2/HS	68	12/4/89
Grassby

MR BENNETT:  Yes, there is a reference to that in the

magistrate,s judgment. Even if that were so,

even if His Honour had felt it necessary to refer

to the matter because there had been, to take

the extreme case 1 extensive argument as to whether

it was an appropriate case for it, by way of

giving an example, His Honour could have dealt

with it without referring to the case. He could

have said, "An example of a case where it might

be appropriate would be where there was a proceeding

statute barred and after it was statute

barred the matter became public and then it might

be appropriate."

Had His Honour merely prejudged an issue

of law we would not be making a complaint. Of

course, judges express views on questions of

law all the time in their judgments and in other

places.

DEANE J: 

I was not raising something for you to argue

about but it would be relevant, would it not,

if it were known, that the judge was dealing

with something that had been raised by counsel

or, alternatively, that he was simply taking

something from the newspapers and putting it

in his judgment.

MR BENNETT: 

Your Honour, it would be relevant because

the one would be less serious than the other
but the degree of mitigation - - -

DEANE J: 

But the answer to my question is that we do not

know?

MR BENNETT: 

The answer is, "We don't know 11 , except this,

Your Honour, that His Honour does not say that

in his judgment at pages 253 to 255.	The way
His Honour puts it is this:	he refers to the

application to disqualify himself and at line 15

on page 253 he says:

In that case, I was concerned to draw

a distinction between the use of the criminal

defamation law where that use served only

private interests and its use where the

public interest is served. After referring

to a number of prosecutions which were,

I suggested, no more than squabbles between

individuals, I said this-

and he sets out the passage, omitting the first sentence of the following paragraph. He then says:

C2T21 /1 /Nl)"	69	12/4/89
Grassby

It could hardly be argued that, if

the fact of the publication in this present

prosecution had not been discovered until

the Nagle inquiry, the public interest would

not have been served by prosecuting

Mr Grassby.

That, itself, involves some elements of prejudgment

We certainly would not accept that proposition.

The magistrate considered it was an abuse of

process to have prosecuted him in those circumstances.

The only difference between that and the actual

facts is the time but the other parts of the

abuse of process are all there.	And His Honour
says:

That is all that I said there. It was no

more than an illustration of one set of

facts where I thought that the public interest,

rather than merely private interests, would

justify the use of the criminal defamation

law.

As it subsequently turned out, that set of facts was incomplete, because the

fact of this publication had indeed been

discovered prior to the expiration of the

civil limitation period, even if its

significance may not have been realized

at the time. That may be quite a different

situation, but that is not something which

I need explore at this stage. I simply

have no view one way or the other.

No question of a stay of the prosecution

of Mr Grassby by reason of prejudice caused

by the Crown's delay was under consideration -

although, as I have pointed out, it was a very
closely related issue.

On the other hand, that question of a

stay ..... are the only questions -

before the court now.

There could be no reasonable apprehension

by anyone who had read the view which I

expressed in that case (in its proper context)

that I would hold any particular view in

this present case.

With respect, we take issue with that.

It is of some interest to note that the

phrase, "extraordinary circumstances", is a phrase

C2T21/2/NlJ	70	12/4/89
Grassby

which is picked up in the judgment of the Court

of Criminal Appeal itself at page 289 in relation

to exactly the same matter. So the very phrase

His Honour used in the earlier case is the phrase

which is used when they come to discuss that

question. And it is a phrase, we would submit,

which is not totally appropriate in any event.

That is at page 289, line 7. And it is in

relation to the issue which I addressed

Your Honours on earlier about the remarks of

Mr Bottom.

Your Honours, for those reasons, we would

submit that this is a case in which the

disqualification ought to have occurred and the

decision of the Court of Criminal Appeal is

vitiated by that. And on that ground alone we

would submit that special leave should be granted

and the appeal allowed and the matter dealt with

appropriately.

MASON CJ: Mr Bennett, if we make the assumption, just

for the moment, that the Court might be against

you on your first ground, would it then be

necessary for the Court to deal with the second

ground?

(Continued on page 72)

C2T21/3/NJ?-	71	12/4/89
Grassby
MR BENNETT:	Only for this reason, Your Honour:	that the

Court of Criminal Appeal has gone to some trouble

in the final part - - -

MASON CJ:  To give advice to the trial judge in the event

that an application is made to him.

MR BENNETT:  Yes, and we would wish to be able to make

appropriate submissions to a trial judge in relation

to the view he should take of those passages and it

would be -

MASON CJ: Unimpeded by the views expressed by the Court in

this case.

MR BENNETT:  Yes, Your Honour. For that reason, we would

submit that it is a matter the Court should act on

in any event, apart from the fact that there is, we

would submit, a strong public interest in the Court

expressing a view on matters of this sort where they

occur, in the interests of justice. It is not a

borderline case if I may respectfully so describe it.

If Your Honours please, those are the submissions.

MASON CJ: Thank you, Mr Bennett. Yes, Mr Solicitor.

MR MASON:  We have prepared rather hurriedly a set of submissions

responding to those my learned friend tabled yesterday .. ·

As Your Honours know, we had previously done the

exercise in a form that are embodied in the application

book.

MASON CJ: Yes.

MR MASON:  Your Honours, we follow the order which my learned

friend proceeded and submit, firstly, that the Court

of Appeal correctly confined the power of a magistrate

hearing committal proceedings to stay to abuse which

affects the committal itself. I appreciate that does

not really address the issue which Your Honours

Justices Brennan and Dawson had particularly raised

and I can only say that that point was not taken
below nor prepared here.	We, therefore, of

necessity, confine our submissions to the narrower

ground of attack or defence.

BRENNAN J:  Mr Solicitor, that may be so that you confine it

in that way. Do you have any submissions as to what

the appropriate course for a court to take is if the
submissions, so confined, are inconsistent with the

construction that one would place upon a section?

MR MASON: Well, we certainly rely on section 41(6) in a variety

of ways if that is the section Your Honour was referring

to.

BRENNAN J: Yes.

C2T22/l/SH·.	72	12/4/89
Grassby

MR MASON:  The only bit which I say somewhat defensively

we do not argue is whether a magistrate has a

power during the course of connnittal proceedings

before reaching the section 41(6) opinion to stay

for certain types of abuse.

BRENNAN J: That raises a question similar to the one that

was considered in JAGO's case, does it not, namely,

the extent to which a court is entitled to abstain

from exercising a jurisdiction which is regularly

invoked.

MR MASON:  Yes and, as to the JAGO matter,and I had not realized

the Court would be differently constituted, may I have

permission to Your Honour Justice Dawson a copy of our

submissions in JAGO. I have given a copy to my

learned friend, Mr Bennett, last night.

DAWSON J:	Thank you.
MR MASON:	As we put it in JAGO, the Crown accepts that it has

become part of the connnon law in Australia that there exists, certainly in a trial court, an inherent power

to stay permanently where there has been an abuse of
process which would make the continuation of that trial

inappropriate.

BRENNAN J: And you draw no distinction between courts of general

jurisdiction and courts of specific statutory

jurisdiction which are inferior courts?

MR MASON: Well, certainly, as between a supreme· court and a

district court no distinction is drm-.n in the proposition that

I have just put in that to say that one is of general

jurisdiction or statutory jurisdiction is not, in my

submission, addressing the significantly relevant

factor. There may be a world of difference, however,

in relation to a magistrate exercising a power to

commit and we certainly put the submission that that

magistrate is confined to an abuse which taints the

committal itself. (Continued on page 74)

C2T22/2/SH	73	12/4/89
Grassby

BRENNAN J:  But your proposition is, as I understand it, that

you - well, your proposition is not that you wish to

contend that the statutory power of committal is not

subject to any reservation in the repository of the

power entitling him to fail to exercise it.

MR MASON:  No. To give an example - and I am not, unless the

Court really directs me, wishing to be drawn into

putting an argument but merely to explain in part

why the argument had not arisen hitherto. Assuming

the Crown were directed to provide particulars in
support of a charge that was at committal stage and

the Crown wilfully refused to provide those particulars,

is it to be thought, one asks interrogatively, that

the magistrate is so lacking in power to compel

obedience to the direction that is being given, that

he or she has to continue with the committal? We

would submit that it would be likely that in that
situation the magistrate would say, "Well, if you are

not willing to play the game by the rules, well, the

game just does not take place."

Now, what happens later if the committal, aborted

because of that stand off, may be an interesting

question if the Crown later said, "Well, there being

no committal we will proceed ex officio." There would

no doubt be a terrible argument as to who was to blame

for the resulting abuse of process if BARTON's case

were applied to that situation. But, in principle,
we would submit that provided the power is confined

to the protection of the proceedings before the
magistrate and is confined to what those proceedings
are properly involved with, there is no reason in

principle why there should be lacking a power to stay.

BRENNAN J:  Well, I understand the argument. I do not know

whether I accept the argument or the reservation

of the argument. It seems to me that it is on one

view of the matter conceivable that at least,for my

part, I would need to consider the subject of the

reservation.	So long as that is clearly understood
present it.
I think we can pass on to the argument as you wish to

MR MASON:  Yes. Your Honours, the reference to FORBES' case

came to my attention in the learned article my

learned friend gave part of and it is conveniently

set out on the paragraph after the passage which he

read at page 457 of the Australian Law Journal.

There is a reference there to the decision of this Court in REG V FORBES, 127 CLR 1, where this Court

held that the inherent jurisdiction of the Commonwealth

Industrial Court did not in proceedings relating to

alleged breaches of union rules in connection with

a ballot concerning the amalgamation of the union with

other unions, permit the making of, in effect, aMAREVA-

type order. There is a passage from the judgment

C2T23/l/MB 74 12/4/89

Grassby (Continued on page 74A)

of Mr Justic·e Menzies quote about the middle of

the page:

The Court is not concerned with property

and the protection of property. It is ..... an

industrial court and although part of its

statutory jurisdiction is to exercise control

over registered organizations, it has not

inherent jurisdiction to do so. Provisions

such as ss. 109 and 141, expressed in limited

terms, cannot be extended by resort to so-called

inherent jurisdiction. Such inherent jurisdiction

as the Court may have could not go beyond

protecting its function as a Court constituted
with the limited jurisdiction afforded by
the Act.

That would support, in my submission, the stance taken by the Court of Criminal Appeal in this case.

On the narrower ground, in paragraph 2, we put the submission that the power to stay if otherwise exercisable with reference to matters of concern to the trial is clearly spent by the time the magistrate

has formed the opinion in section 41(6). 41(6)(b)

makes plain that having formed the necessary opinion

the magistrate is obliged to commit and it is clear

on the evidence the magistrate here formed and

stated that he was of the necessary opinion. So on

the facts of this case it was too late in any event.

Your Honours, in paragraph 4 we seek to give

some reasons why the power of the magistrate should

be so confined.

(Continued on page 75)

C2T23/2/MB	74A	12/4/89
Grassby

MR MASON (continuing) We would say thRt section 41(6)(b) itself

is evidence of that because if 41(6)(b) contemplates

that a time will ~ome where the magistrate is obliged
to corrrrnit, that, in itself denies that at any earlier

stage in the proceedings the magistrate could

properly be concerned in all cases with the fairness

of the trial to come. We would submit, secondly, that there

is something inappropriate for an inferior court

staying proceedings to be corrrrnenced and prosecuted in a higher court. If one looks at the analysis of the power to stay given in BARTON's case where there is the clear affirmation of the Crown's

power to present the indictment, coupled with the

court ' s St:c!1terrent, ''But that, _,once the proceedings c ormnenc c ,

the court is in control of its proceedings ," that shows

that the conceptual nature of the court's power is

linked to what happens before the court itself and,

therefore, what is being stayed in conceptual terms

are the proceedings in the court. It is not the

hand of the prosecutor in presenting the indictment,

because BARTON affirms that the prosecutor has that power;

it is the proceedings that continu,__ after that

step is taken. So one has the anomaly of an inferior

court telling a superior court what to do.

TOOHEY J:	Mr Solicitor, the order made by the Court of Appeal
suggests that as well as staying the magistrate
dismissed the information.
MR MASON:	Yes, he did.

TOOHEY J: That is not evident from the transcript relating to

the decision of the magistrate itself. At least, I

have not picked it up.

MR MASON:	I will have the page turned up, if I may, Your Honour.
TOOHEY J:	Can you just explain the implications of that?
Why he not only stayed but, if he did, made an order dismissing the information.
MR MASON:	Yes. Well, presumably, there being - I do not say
this as a justification - but, as far as I can perceive
the reasoning, and I do not think there was any dispute about his power to do so below; he, having stayed the corrrrnittal permanently, there was nothing
left to do in the committal. It may have been
influenced by the fact that he wanted to move to the question of costs, I do not know, because he not only dismissed the information but IT~de an order
of costs against the Crown.  I do not think there
was any real argument as to whether one followed
inevitably from the other. Perhaps I can have that
turned up.

TOOHEY J: If there is a reference, perhaps you could let us

have it later.

C2T24/l/VH	75	12/4/89
Grassby
DEANE J:	Mr Solicitor, while you are being interrupted:	on

vour construction of section 41(6), can a

magistrate form his view of what the trial judge

will do in the exercise of his discretion as to

anything? I mean, say, for example, the whole

Crown case was based on a confession and the

magistrate was of a very strong view that the
confession would be rejected by the trial judge

in the exercise of a discretion because of the

manner in which it was extracted, would he be

entitled to act on the basis that the trial judge

would reject the confession or has he got to

say, "I am not allowed to guess what the trial

judge will do, therefore I will assume that the

confession is in evidence"?

MR MASON:	In my submission, the mag is.tr ate is not concerned
with that issue, a BUNNING V CROSS discretion, and
that matter was debated, not at great length before the court below, although the court expressed an opinion on that issue.

DEANE J: What, there is no clear authority on it.

MR MASON:	There were two earlier judgments, I think they are
referred to; one is called CHID's case, a judgment
of Mr Justice O'Brien. There was an earlier case -
at least one of them was .unreported. This is far
and away the clearest authority and the first time
the court has addressed the issue in any square terms. It is a matter of great significance in the amount of time that is involved in committal
proceedings directed at that second-guessing
exercise. But my submission is that the magistrate's concern is with the admissibility of the evidence. Having ruled it admissible, the fairness of presenting
it at the trial is a matter for the trial judge
at the trial and not for the magistrate.

(Continued on page 77)

C2T24/2/VH	76	12/4/89
Grassby

MR MASON (continuing):  I submit that one is not driven to

one view or the other by the words of 41(6). They

are sufficiently ambiguous about that not to get

any clear guidance as to what the approach is.

The statements about the BUNNING V CROSS discretion

do refer to the trial judge, although the Court in

that context was not addressing the type of issue

that is here involved.

DAWSON J:  But when it is a question of voluntariness, that is,

a question of admissibility -

MR MASON:  That is quite different.

DAWSON J: Yes.

MR MASON:	Yes.	If it is not voluntary, it is not admitted.
DEANE J:	Yes.	I was only concerned with a distretionary matter.

MR MASON:  Yes.

DEANE J: While Mr Bennett has not put it this way, implicit in

that is rejection of the notion that the magistrate

is entitled to say a jury would not be likely to

convict the defendant here because the matter will

never reach the jury.	It will be stayed on the basis
of the view -

MR MASON:  Because of a BUNNING V CROSS discretion.

DEANE J: No, it be stayed on the basis of abuse of process.

MR MASON: Correct. Yes, I agree with what Your Honour is

saying there.

DEANE J:	You mean, you would reject that possible construction.
It does not fly in the teeth of section 41(6).
MR MASON:	It is not for the magistrate to be concerned - what that

implied submission really amounts to, in'my submission,

is that the magistrate should be concerned, not only

with the fairness of the trial, but also with what the	Crown is likely to do in finding a bill and neither of
those, in my submission, is part of the committing magistrate's function because there could be a multitude of reasons that would lead the Crown to
no bill that would have nothing to do with the
exercise of the magistrate's function in finding a case had been made out for trial or not.
We, thirdly, submit that it is quite inappropriate for a committing magistrate to be staying proceedings
which depend for their institution upon a later and
unreviewable decision of the Crown to indict and we
submit that the stay in this case, by its terms,

C2T25/l/SH	77	12/4/89
Grassby

effectively prevented an ex officio indictment.

It was not just a question that the Crown was

politically driven to resort to its power of

appeal under section SF. Had the Crown indicted

in the teeth of the stay, that itself would have

been an abuse of process because it would have
been a direct contradiction of the spirit and

probably the letter of the magistrate's order

that he had pronounced and the fourth ground is

basically, as we understand the propositio~ put by

Your Honour Justice Dawson, that it would be a

self-defeating exercise for the magistrate to have

such a power because it would leave the accused
person without a committal if the Crown later

decided to prosecute, as it is entitled to do and

it would, thereby, itself induce an abuse of process

at trial, if committal is a necessary prerequisite

as it is in many cases.

Now, my learned friend said, "Well, this leaves

one in a terrible position because what about a

30-year old driving offence? Does it mean that we
have got to go through the farce of a committal?"

My submission is no because the supreme court has

power to grant a permanent stay while the matter is

yet at committal stage.

In paragraph 6,we address the specific arguments

raised by my learned friend and, if I may, I will not

burden the Court with reading those submissions.

Turning, then, to the nature of the abuse found, my

learned friend, in our submission, really said to the

Court, "It is an all or nothing, either/or situation"

but in truth, the attack made in the Court of Criminal

Appeal was that there were a number of specific errors

which vitiated the magistrate's decision to stay.

There were two major errors. The first is the point

that has been addressed in point of law so far:

whether the magistrate was entitled to concerned

himself with matters going to the fairness of the

trial and, in our submission, it is clear that the

magistrate did. May I just refer the Court to four

of those passages, the first one at page 175, lines
45 to 50. Having quoted the DERBY magistrate's case,

the magistrate, at line 45 said:

The most relevant

proposition -

to this case is that the power to stop a

prosecution should only be used in most

exceptional circumstances, and the power of

Justices to decline to hear a summons is very

strictly confined. The ultimate objective is

to ensure that there should be a fair trial -

C2T25 I 2/ SH·.	78	12/4/8?
Grassby

MR MASON (continui0g):  Page 181 lines 9 to 11:

In weighing up the public interests
involved in the expeditious prosecution
of this charge in an orderly manner and
in accordance with established procedures,

and ensuring the fairness of criminal

trials, it seems to me -

et cetera. Grounds 3, 4 and 5 at lines 18 to 21

address the question of fairness at trail - they

also address the appropriateness of the prosecution

exercise itself - and page 182, lines 18 and 19:

It seems to me that any public interest that may be served by these proceedings

continuing, is so slight compared to the

disadvantages to the defendant -

et cetera. Now, in the passage at page 152 to

which Your Honour the Chief Justice drew attention

last night the word "continuing" seemed to be the

nub of the attack and my learned friend said, "Well,

that was before the magistrate addressed the stay".

Here it is repeated in his judgment. Secondly, we submit that, as the Court of Criminal Appeal itself found and concluded at page 295 and page 296 in its

judgment, the magistrate, by his reasons, showed

that in effect he was reviewing the decision to

prosecute. He was sitting in judgment on the fairness

of the Crown's decision to prosecute Mr Grassby for

criminal defamation. We have endeavoured to collect

the evidence about this and it is probably clearest

just to go to.the grounds on page 181. The

clearest of this is the whole concern about

Mr "Smith".

Mr "Smith" had been discredited as a witness

and with his discredit went the case of criminal

conspiracy but the charge of criminal defamation was

never dependent upon Mr "Smith"'s evidence, never

solely dependent upon Mr "Smith"'s evidence. There

is an explicit statement to that effect in the

yellow book material at page 370 by the Crown

prosecutor. Why was the magistrate, having dismissed

the charges based on conspiracy, concerned to

continue to say, "Why is the Crown continuing with

the defamation charge in view of what I have said

about Mr "Smith" when the defamation charge stood

on its own legs independent of his evidence"?

In truth the magistrate was reviewing the

propriety of the Crown's decision to continue with

what the magistrate wrongly termed "the back-up

charge". In our submission, if one looks at

grounds 2, 4, 6, 7, 8 and 10 the magistrate clearly

is doing that.

.

C2T26/l/HS	79	12/4/89
Grassby

BRENNAN J:  What is wrong with that if - if ~here is a

discretionary power to stay for abuse what is

wrong with that?

MR MASON:  If there is a power it is to be exercised to

protect the fairness of the trial. It is not

relevant to the exercise of that power to determine

the fairness of the decision to prosecute itself

and the authorities on that distinction are

in our submissions in JAGO, particularly

paragraph 2(e) and the authorities that we have

collected in paragraph 7(b) in this present case.

It is no concern of the Court to second guess
or to be even concerned about the decision to

prosecute and the reason was given in BARTON's case,

namely that it really is drawing the Court into a

risk of public controversy by in effect being

involved in reviewing whether or not it is

appropriate for a prosecution to commence.

(Continued on page 81)

C2T26/2/HS	80	12/4/89
Grassby

MR MASON (continuing):  A third particular ground is that

the magistrate in ground 1 said in effect that time

ran from 1980. This is a separate point made by

my learned friend but, we submit, the Court of

Criminal Appeal correctly found that time ran from

1987.      Can I just pass across to paragraph 9 of these

written submissions and address the question of when

time connnenced to run. Our detailed submissions on

that are embodied in the response we made to Dr Wood's

written submissions, page 357. We say that the

question of when time connnenced to run does not

raise a special leave matter for two separate reasons.

In the first place it is a question of fact in a

particular case and, secondly, it arises in the course

of an obiter discussion by the Court of Criminal

Appeal that was really, in effect, on one view doing

what it said the magistrate should not be doing, giving

advice to the trial judge as to how the trial judge

should exercise the discretion to ensure fairness

at the trial. If the Court would go to page 285

of the appeal book, and it is at page 27 of the

Court of Criminal Appeal judgment, the Court has

by this stage decided that the magistrate erred because

of section 41(6) and because he was, in effect,

reviewing the decision to prosecute and other matters,

and at line 12:

Any application to stay the prosecution which

may now follow the magistrate's committal

of Mr Grassby for trial will have to be made

to the trial court which (bearing in mind the

nature of the charge in this case) will presumably

be the Supreme Court. The matters considered by

the magistrate have, however, been debated in

detail during the course of this appeal and it

may be helpful to the trial judge if this Court's

views concerning those matters were expressed

briefly.

Then follows, on pages 285 to 290, the Court's view

on when time commenced to run. Reference is made
to the Sun-Herald article.	My learned friend said

that that should have triggered off attention but

all that Mr Bottom's connnents raised were that the

distribution of this four-page document should have

raised questions as to whether people behind the

distribution were endeavouring to lay a false trail.

But the nub of the defamation charge. rests in an

entirely different matter and material which only

came to light in 1987 when Mr Maher gave evidence

before the two inquiries. This is dealt with in the

judgment at 285 to 290 which we would respectfully

adopt in entirety. At 287 in the middle paragraph

one gets to the heart of it:

There was nothing in the evidence before the

magistrate which shows that the police were

aware of the circumstances in which Mr Grassby

C2T27/l/MB	81	12/4/89
Grassby

made that publication to Mr Maher and which are now

alleged to constitute the offence charged. For

all that the police knew, Mr Grassby had simply

handed the document to Mr Maher with a request

that he pass it on to them in order to assist in

their investigation. Such a publication could

not constitute the offence of criminal defamation.

The police are not shown to have been made aware

of Mr Grassby's earlier attempts to have the

former leader of the Opposition in South Australia

give publicity to the contents of the document,

or of his request to Mr Maher that he read it

out under the absolute privilege of parliament

and that he keep reading it out without interruption

despite any points of order which may be taken.

Now, Your Honours, the nub of the criminal defamation

charge is not that the document was defamatory because

that was not in issue. It was conceded at all times

before the magistrate. It was whether the publication

of that defamatory document by Mr Grassby to Mr Maher

attracted section 50 of the DEFAMATION ACT which

said that, "The publication of a defamatory document

with intent to injure" - I will just get the text

of it, it is repeated in the judgment - "is a criminal

offence".

(Continued on page 83)

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Grassby

MR MASON (continuing):  Page 262 of the application book, the

offence-creating section is there:

A person shall not, without lawful excuse,

publish matter defamatory of another

living person -

That was not in issue at any time before the cOIIL':'.ittal -

with intent to cause serious harm to any

person ..... or

where it is probable that the publication

of the defamatory matter will cause serious

harm to any person ..... with knowledge of

that probability.

That was the matter in issue. That was the fact which

excited the public criminal process. So it w~s that

which came to light in 1987 and the Court of Appeal,
in my submission, correctly held on the facts that

the magistrate was wrong in saying that the time ran

from 1980.

The evidence of Maher about the approach by Mr Grassbv

is in volume I of the application at pages 51 and 52.	J
In so far as the magistrate, in ground 'l said
time rang from 1980, that was an additional error. But turning then to page 4 of our precis, a further
error was his finding, in grounds 2, 6 and 7,that
the defamation charge was a back-up charge. This
was an irrelevant finding; it really showed that he
was reviewing the decision to prosecute, but there
was no evidence to support the conclusion.	We submit,

as a matter of law, that two charges may be brought

concurrently on an identical set of facts. A further

individual error was the finding in ground 5, the

conspiracy charge was dropped. It was pressed all the

way through until the magistrate dismissed it. Now

that is hardly an abuse of process by the Crown, in

our submission.

Finally, we refer to ground 9 where he took into

account what he said was unfairness in the NAGLE

and the NCA inquiries. There had been a real issue

before the magistrate as to whether Mr Grassby's

evidence in those inquiries was voluntary. The

magistrate had ruled that it was and admitted the

matter into evidence. That put an end, in our

submission, to the magistrate's concern with the

question of fairness before those inquiries.

Now, turning then to the evidence of Mr Stephens,

which is another ground; we address those in our

earlier submission. We repeat, this is not a special

leave point; that it was part of the obiter judgment

C2T28/l/VH	83	12/4/89
Grassby

of the Court of Criminal Appeal, in any event.

But we also.submit that what my learned friend

is seeking ·to complain about is something, the

evidentiary basis of which has not been laid.

Our submissions in detail appear at page 359 of

volume II and we submit that applying the test

which was debated at length in the JAGO appeal:

The applicant failed to show any prejudice,

let alone the required degree of prejudice -

suchas would lead to a stay through the claimed

loss of this material, because:

The applicant has not shown that Stephens made

any (relevant) note or that he kept it for the limited period after 1980 in which the

applicant concedes the Crown might fairly

have commenced the present proceedings.

And secondly:

If there were such a note the forensice use of it would be confined to cross-examination

of Maher on credit.	The Sun-Herald article
is available for this.

That leaves the question of the disqualification

of Mr Justice Hunt where our submissions are at

pages 354 and 355 of the application book. Now,

the context of this is significant, in our

submission. I repeat what we have already said

about the nature of the charge under section 50

and would refer the Court to page 264 in the

judgment of the Court of Criminal Appeal about

what matters were and were not in issue.

(Continued on page 85)

C2T28/2/VH	84	12/4/89
Grassby

MR MASON (continuing):  Towards the top of that page,

Their Honours record:

There was no dispute before the magistrate

that Mr Grassby published the document to

Mr Maher, or that it was defamatory, or

that it was false, or that he had never

had any belief that it was true or that

it had been wrong for him to have handed

the document to Mr Maher.

And I would ask the Court to have regard to the

four-page document, in particular the last page,

where the assertion is made in unequivocal terms

that it is likely that Mrs Mackay, her son and

her solicitor were involved in the death of

Mr Mackay.

Against that background, and one comes then

to the remarks of Mr Justice Hunt in WATERHOUSE
V GILMORE, we say this, looking at the judgment:

if one reads the whole of the passage in

12 NSWLR 287E to 289D, the remarks made by

His Honour were relevant to the matters in issue

in that case because at 287E he records the

submission that the prosecutions by the plaintiff

were an abuse of process.

So he was confronted with an issue whether

a criminal prosecution of a defamation matter

was itself an abuse of process and he then dealt
with the distinction between civil and criminal

defamation. As my learned, Mr Bennett, has said,

criminal defamation is a rare bird in modern

Australian legal history. That, of course, does

not make it inappropriate. It was a French

philosopher who said that nothing should ever be done for the first time. But the fact was

this was the context in which His Honour turned

to the Grassby matter by way of an example of
the propriety of invoking the criminal process. Your Honours, the whole thrust of the remarks

that are complained of, in our submission, were

directed at the propriety of invoking that process
and not the question of the guilt or otherwise
of Mr Grassby. But it is further removed from
the facts of the present case because the only

matter in issue in the present case was the

propriety of the magistrate's decision to stay

the proceedings, not the question of the guilt
of Mr Grassby.

As the Court of Criminal Appeal pointed out, perfectly correctly in our submission, the decision to prosecute or not was just simply

not before the court. It was not properly a

C2T29 /1 /ND	85	12/4/89
Grassby

matter in issue before the magistrate or before

the Court of Criminal Appeal. It was a matter
for the Crown. Against that background, therefore,
the remarks of Mr Justice Hunt as to whether
or not it was proper to prosecute were of no

relevance to the matter before the Court of Criminal

Appeal.

But, Your Honours, we would submit that

it is wrong to concentrate too much upon the

appropriateness of the remarks made in WATERHOUSE -

to the WATERHOUSE decision, the rea_ question

at issue is whether those remarks having been

made - we say correctly - - -

DEANE J:	Did you say His Honour was correct in making
those remarks in the context of pending committal proceedings?
MR MASON:	No, what I am saying is that the correctness or otherwise of the remarks having been made in that time and place is not the issue which
this Court is concerned with.

(Continued on page 87)

C2T29 / 2/ND. 86 12/4/89

Grassby	·
MR MASON (continuing):	It is whether those remarks

having been made, whether correctly or otherwise,
they showed to a reasonable observer at the
commencement of the Court of Criminal Appeal

proceedings - - -

DEANE J:  What if one were of the view that those remarks

made at the time they were made were liable to

prejudice the proper hearing of the committal

proceedings?

MR MASON:  Well, that would clearly colour one's view of the

propriety of the remarks having been made then but

would not change the legal nature of the issue as

to whether Mr Justice Hunt should have disqualified

himself now.

DEANE J: 

Do you suggest that a reasonable person reading

those remarks would think they were not inconsistent
with the notion that the continuance of the
proceedings would be an abuse of process?

MR MASON: 

I would submit that a reasonable person who was

considering whether it was appropriate for

Mr Justice Hunt to sit on the Court of Criminal

Appeal application that was then before him would
not conclude that those remarks reflected upon the

matters in issue before the Court of Criminal Appeal.

DEANE J:  In other words would conclude that those remarks

did not reflect upon whether the committal proceedings-

would be an abuse of process.

MR MASON:  No. They would not reflect on whether they would

be an abuse of process because - addressing more

particularly what I perceive now to be Your Honour's

remark - because the propriety of the decision to

prosecute was not an issue in the abuse of process

agenda.

DEANE J:  Even if the proceedings which the decision to

prosecute instituted were an abuse of process?

MR MASON:	If the abuse of process was that the Crown had mala fide instituted the prosecution, and that being
a basis:for abuse of process, then clearly such a
remark would impinge upon that issue before the
magistrate, but that is not the thrust of the abuse of process case that is made in this case.
Certainly, the magistrate wrongly sat in judgment
on the Crown's decision to prosecute,but peeled
away of irrelevant consideration~ if one looks at
what is left, and there is very little, but what
is left is the magistrate's wrong conclusion about lapse of time and prejudice that that caused.
Now, assuming that was a correct conclusion on the
facts, which it is not, that is the thrust of the

C2T3O/l/HS	87	12/4/89
Grassby

proper abuse of process case and therefore

His Honour's remarks do not interact on that.

DEANE J:  Yes. I understand, thank you.

MR MASON:  Your Honours, we would submit - I think I would

be repeating the submission which is on page 355

that properly understood there would not be a

reasonable apprehension that Mr Justice Hunt would

fail to deal fairly with the application before

the Court of Criminal Appeal. Your Honours, we

did not have it on our list of authorities but I

have multiple copies of a judgment of the Court of

Criminal Appeal, differently constituted, in

REG V GEORGE which I hand up, (1987) 9 NSWLR 527.

The relevant passage is on page 535, the second-

last double page, where Their Honours set out

in extenso a passage from the judgment of

Your Honour the Chief Justice in RE JRL

and near line F, the paragraph there where the

principle is stated, in Ga reference to the

increasive frequency of applications and over the

page at page 536 just below B:

In cases of this kind, disqualification

is only made out by showing that there is

a reasonable apprehension of bias by

reason of prejudgment and this must be

'f i rml y e s tab 1 i shed 11 •

(Continued on page 89)

C2T3O/2/HS	88	12/4/89
Grassby

MR MASON (continuing):_ Then in line D the Court of Criminal

Appeal drew certain conclusions from that which,

we would submit, are applicable in the present case.

Finally, on the question of Mr Justice Hunt's conduct

our submission is - and this is at the top of page 354 -

this does not raise a proper matter for special leave.

What we are debating is the application of the on the other arguments that are being put the

judgment of the Court of Criminal Appeal was correct
and certainly the decision of the magistrate was

wrong, even if it was not wrong for all of the reasons

assigned to it by the Court of Criminal Appeal.

Therefore, even if the Court were of the view that

the remarks either should not have been made or
that they did raise a question of inappropriateness

of His Honour sitting, that would not be in itself

necessarily a matter which would lead to a grant

of special leave. I appreciate that is a matter for

the Court's discretion. If the Court pleases.

I am sorry, the dismissal of the proceedings was not

in the appeal book but copies have been made. It

was on 27 May 1988 and could I hand up those pages.

MASON CJ:  Yes, thank you. Yes, Mr Bennett.

MR BENNETT:  In relation to paragraph 2 on page 1, if it be

correct that the magistrate has no power to do what

he has done, so be it, but if the magistrate does
have power to refuse to proceed further because of

an abuse of process in front of him that power does

not disappear at some moment when his mind reaches

internally a particular conclusion. The moment when

the magistrate is bound to do what he is bound by
section 41 to do is the time when he says, "That is

the end of everything, now I am ready to pronounce

my decision and my mind is as follows." At any

time before that, whatever view he may have formed,

he is entitled to reconsider and he is entitled to

do whatever he otherwise may do with a view to his

mind being changed and he is entitled to take into

account and exercise whatever powers he has.

The mere fact that as a matter of procedure

the proceedings have reached a stage where but for
that matter he might have taken the course under 41(6)

does not prevent him doing it.	My friend refers to
WENTWORTH V ROGERS there.	I simply remind Your Honours

that that was concerned with the old Act and, indeed,

it was that decision which led to the amendments being made which cast section 41 in a completely

different form and impose totally different duties

on a magistrate. So what WENTWORTH V ROGERS said

about his duties simply have no application. Indeed,

such as they are, when one looks at Hansard, which says

it was to reverse WENTWORTH V ROGERS, they would be

submissions for the opposite side.

C2T31/l/MB	89	12/4/89
Grassby

On page 2 my learned friend referred to the order of the magistrate having the effect of preventing

an ex officio indictment and the reason he suggested

for that was that it would be contrary to the spirit of the order. Now, Your Honours, the magistrate did

not pronounce an injunction. He has no power on any

view of it to stay the hand of the Crown in issuing

an ex officio indictment.	No one suggests he has
that power.	My friend has not been able to point to

a place where he purports to exercise such a power.

Why should one, for the purpose of attacking his

decision, seek to construe him as having purported to

do so, he has not. The mere fact that an action is

contrary to the spirit of what a court has done does

not prevent it taking place.

(Continued on page 91)

C2T31/2/MB	90	12/4/89
Grassby

:MR. BENNETT (continuing): As I say, there is nothing at all

resembling an injunction in the present circumstances.

The sole sanction against the Crown is what I have

described as the political sanction.

On page 3, in relation to the 12 grounds,

ground 5, we would submit, is not a ground which, on

any view of it, falls into my friend's category.

Ground 5 was "the considerable personal harm suffered by the defendant as a result of evidence given in a

charge which has been dropped". That related to the

past, proceedings before him. It was one of the

matters he took into account but whatever may be

said about it, it does not relate to the future.

My friend referred to the passage at page 182 and I simply remind the Court that, in that passage,

he was referring to Mr Justice Kirby's fifth factor

and he had to look forward to the trial in order to

apply that factor but that is a very different sort

of looking forward.

Finally, if Your Honours are against me on that

aspect of the case and only on that aspect - in other

words, if Your Honours conclude that the magistrate
took into account some matters which he should not
have taken into account - the correct course would

be, we would respectfully submit, to remit it to the

magistrate with a list of the matters he should not

have taken into account in order that His Worship

may determine what decision he would come to if those

matters are excluded.

On page 4, my learned friend submits:

The defamation case was never dependant upon

Smith -

and he refers to page 370 and to a· statement made by

the prosecutor in his earlier submissions. However,

at page 414 of volume II of the yellow book, the

prosecutor is quoted as saying this, in relation to

Mr Smith:

Your Worship the same events would have taken

place had the criminal defamation connnittal

been heard separate to the criminal conspiracy .....

Smith would have been called, Your Worship you

can't turn the clock back---

So the prosecutor, in fact, submitted on 12 August 1988,

in relation to an argument about costs, that Smith

would have been called had the two aspects been

separated. So, the prosecutor regarded Smith as being

relevant to the criminal conspiracy - I am sorry, to

the defamation.

C2T32/l/SH	91	12/4/89
Grassby

We would submit that, clearly, Smith was

relevant to both proceedings. He was relevant

because the whole matter which gave colour to

this criminal defamation, the whole matter which

made it something worth prosecuting, was the

suggestion that it was an attempt to protect

murderers and the prosecutor was perfectly correct

when he made that submission.

Finally, in relation to disqualification, my

friend's argument depends upon a fine definition of

the nature of the issue to which His Honour was

referring in the WATERHOUSE case and the nature of

the issue to which His Honour was referring in this

case and there is no doubt that conceptually the

issues were not identical. It is of significance,

however, that the formulation of the rule refers to

a fairminded member of the public and the question

we rhetorically pose is this: having read that

passage and having seen His Honour express the view

that in relation to the Grassby case the very matter

justifying such an extraordinary charge was the fact

that civil proceedings were statute-barred, would

such a person, having said that about that case

publicly at a time when committal proceedings were
pending and made the other criticisms to which I
have referred and, in the language to which I have

referred, would a fairminded member of the public

regard that judge as being likely to bring an impartial

mind to the question whether there was an abuse of

process substantially constituted by delay?

(Continued on page 93)

C2T32/2/SH	92	12/4/89
Grassby

MK BENNETT (continuing):  And, to say that abuse of

process is a different question from decision

to prosecute a different question from

whether it is properly brought is, in my

respectful submission, a nice legal quibble

in the context of applying the L1VESEY and

WATSON test. And, in my respectful submission,

the test does not require that that be done.

In so far as the GEORGE case suggests that

the member of the public concerned be one with

a full comprehension of the circumstances of

each case, that may be going beyond the test

laid down by this Court. But, certainly it goes

beyond it, if it is intended to suggest that the

member of the public is a person who is a

person with a precise legal knowledge of the

precise nature of the distinctions between the

issues.

Of course, bias is not a matter of precise

issue. We are concerned, of course, with

reasonable apprehension of bias, not with bias,

because one does not look at actual bias in

these cases. When one looks at reasonable

apprehension of bias, one simply does not say, if a person expresses a view which might lead

to such a suspicion, "Well, the issue being

decided is subtly different". lt is theoretically

possible to hold the view expressed by

His Honour on the one issue, but the other view on the other issue. That would simply not

negate a reasonable apprehension of bias in the

eyes of a fair minded member of the public.

Finally, I am reminded that, in case it is

not clear from the material, that the original

decision to prosecture was made by the NCA in

this case - by the National Crime Authority -

and, subsequently, the matter was passed to the

Director of Public Prosecutions - but that does

not affect any of the earlier matters.	May it
please the Court.

MASON CJ:  Thank you, Mr Bennett. The Court will consider

its ctec1.sion in this matter.

AT 12.l3 AM THE MATTER WAS ADJOURNED SINE DIE

C~T33/l/JH	l~/4/89
Grassby	93