Grassby v The Queen

[1989] HCATrans 78

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S231 of 1988

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 TUESDAY, 11 APRIL 1989, AT 3.01 PM:

Copyright in the High Court of Australia

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MR D.M.J. BENNETT, QC:  May it please the Court, in that matter

I appear with my learned friend, MR J.J. FOLEY, for

the applicant. (instructed by Foleys)

MR K. MASON, QC, Solicitor-General for the State of New South

Wales: I appear with my learned friend, MR P.I. LAKATOS,

for the respondent, the Director of Public Prosecutions.

(instructed by Solicitor for Public Prosecutions)

MASON CJ:	Yes, Mr Bennett.
MR BENNETT:	I hand to the Court my outline of submissions.

MASON CJ:  Thank you. Yes.

MR BENNETT:  Your Honours, the first issue concerns the power

of a magistrate to deal with matters of abuse of process

and if he does stay for abuse of process on what grounds

he can do so. The Court of Appeal held, and there

is no challenge to this aspect of the decision, that

it is permissible for a magistrate to stay criminal

proceedings on the basis of an abuse of process

confined to the proceedings before him. Our submission

is that that is too narrow an approach, bearing in

mind the role of the committal proceedings in the

overall criminal process.

The second submission is that if the power is

limited in that way this was nevertheless a case where

the magistrate correctly found abuse of process in the

proceedings before him. Indeed, he gave 12 reasons

of which only two could be said to relate to the trial.

There are then some specific respects in which the

Court of Criminal Appeal held that for some specific

reasons there was no abuse of process and no prejudice,

and I will deal with those fairly briefly, that is

the third and fourth matters in the outline. The

final matter concerns the disqualification of one of

the members of the Court of Criminal Appeal. In so far,

of course, as one is only concerned with issues of

law that might be thought at this stage no longer

to be a relevant consideration because if one had a

normal appeal from an intermediate appellate court

on a question of law and this Court considered that

the decision was right, there would be no reason for

this Court to consider whether a member of that court

should have disqualified himself.

(Continued on page 3)

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Grassby

MR BENNETT (continuing): There are two reasons, however, why

r it may be necessary for me to go to that matter.

The first is that this is an application for special

leave and, if the Court were of the view that there

were errors of law but that the matter was not

otherwise appropriate for special leave, we would

submit that the reference in the JUDICIARY ACT to

the requirements of justice would mean that where

a judge should have disqualified himself and there

are errors of law, that combined circumstance would

justify the grant of special leave.

The second reason why it may be relevant is

in so far as one construes the Court of Criminal

Appeal's judgment as a re-exercise of the magistrate's

discretion, then, of course, to that extent it is

very relevant that His Honour failed to disqualify

himself.

The first ground, then, is a broad one and it

is the question of the extent of the power of a

magistrate to stay for abuse of process. The

question was described by Their Honours at page 269 as a "vexed one". Well, that on its own may not be

sufficient to justify the grant of special leave. It

is, we would submit, an accurate description of the

problem and it is one which does require this Court's

attention.

The only direct authority is one which is in the present applicant's favour and that is the decision of

Mr Justice Rath in MILLER V RYAN, (1980) 1 NSWLR 93,
and may I start by taking Your Honours to that decision.

The only relevant part is on page 109. The nature of

the abuse in this case Your Honours need not be
concerned with. It was a fairly complicated situation

involving multiple accused and one of them being asked to produce documents on subpoena relating to the other

and then the one who had been required to produce

documents on subpoena being charged largely because

with that. of those documents. Your Honours are not concerned (Continued on page 4)

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Grassby

MR BENNETT (continuing); But at page 109B, paragraph 52,

His Honour ·dealt with the present problem, and he

said:

I think that the cases I have referred to

establish the proposition that every court has

a right, in its discretion, to decline to hear -

and we stress those words -

proceedings on the ground that they are an

abuse of the process of the court.

He refers to MILLS V COOPER and to DIRECTOR OF

PUBLIC PROSECUTIONS V HUMPHRYS. HUMPHRYS was a

case where the court referred to the abuse that would

be committed if, where a man was acquitted after

giving evidence in his defence, there were immediately
to be a prosecution of perjury and the police were to
attempt to retry the original offence on the basis
of a charge of perjury, although the House held that,

on the facts of that case there was no abuse, a

number of Their Lordships indicated that to do that,

to attempt to retry the issue by using perjury as a

means of doing it, would be an abuse of process,

which a court would stay:

The discretion extends to every court -

His Honour says -

and will include a magistrate hearing committal

proceedings, because, although such an inquiry

is not a judicial proceeding: AMMANN V WEGENER,

it is part of the procedure of the courts of law

for the enforcement of the criminal law.

Your Honours reca.11 · AMMANN V .WEGENER.· was· the service

and execution of process case as to whether the service

and execution of process provisions of the CONSTITUTION

applied to a magistrate's proceedings on a committal:

I am, therefore, of the opinion -

His Honour continues -

that the magistrate did have the power to stay

proceedings on the first charges in this case

on the ground, if he found it established,

that their continuation -:-1

that is the continuation of the charges -

was an abuse of the process of the court.

That is the direct authority in my favour.

DAWSON J:  But we are talking there about proceedings in the
magistrate's court, not the proceedings in another court.

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Grassby

MR BENNETT:	Oh yes, Your Honour, committal proceedings.
DAWSON J:	Yes.

MR BENNETT:  Yes. But the stay is not a stay of proceedings

in another court. It may have that effect, although

I suppose there is always a power to issue an

ex officio indictment but, the question is, what he

is entitled to look at in determining whether there

is an abuse of process.

(Continued on page 6)

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Grassby

DAWSON J:	We are talking about a stay of prosecution here, are we not?
MR BENNETT:	Yes. Well, the actual terms of the order, I think,

were simply that the - the order made at page 182,

line 45, that is, volume I of the application book,

is:

I make an order permanently staying these

proceedings.

So it may be more limited than that, Your Honour.

When Your Honour says the prosecution, what he is

staying is the proceedings before him which are

cormnittal proceedings which are part of a prosecution.

DAWSON J:  So that order has no effect should the Director

of Public Prosecutions, or whoever the relevant

prosecuting authority is, should decide to proceed?

MR BENNETT: 

Subject to this, Your Honour, that then one would

have the various question as to whether an ex officio
indictment itself should be stayed. But no doubt

the fact that the magistrate had stayed proceedings before him would be a. matter which would weigh heavy with the prosecution authorities in making their

decision. The phrase "these proceedings" must,
in its context, relate to the proceedings before the
magistrate, we would submit, but the issue which is

between the'f'9.rties and the Court of Criminal Appeal
and the issue on which we attack the decision of

that court is whether in seeing what a.cts constitute

the abuse and what the effect of the abuse is, he

is confined to looking - - -

DAWSON J: 

It is just that it may be an ,old-fashionedview but

it has been a view that has been cormnonly held that
it is not the magistrates court that decides whether

or not there is to be a prosecution, that the function
of the magistrates court in cormnittal proceedings is

to decide what is to happen to the accused; whether

he is to go free, whether he is to go on bail or whether

he is to stay in prison, pending a prosecution if any.

Now, that means that an order of that sort is of

a.very limited scope, does it not, if that is true?

MR BENNETT:  Well, bearing in mind what was said by this Court

in cases such as BARTON, we would submit that the

modern view of the function of a magistrate is a

little wider than that and, of course, under the

1985 amendments to the New South Wales JUSTICES ACT,

to section 41, his power may be thought to be a little

wider than that because he has to determine whether

he thinks it likely that a jury would convict.

· DAWSON J:  I mean that is why I said it may be an old-fashioned

view that I was putting to you but the fact of the

m~tter still remains that it is not the magistrate who

decides whether there will or will not be a prosecution.

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Grassby
MR BENNETT:	Ultimately that is so, Your Honour.	He is one

of a number of filters and that is a filter which,

if I can continue the metaphor, can be bypassed.

DAWSON J: Well, it is not really a question of bypassing,

is it - I do not want to carry this on too far -

a decision has to be made by someone other than the

magistrate whether or not to prosecute?

MR BENNETT:  Yes, that is clearly so, Your Honour. But that

does not mean that the magistrate cannot say, as part

of his functions, "What is taking place before me

is an abuse of process and I will stay these proceedings

indefinitely." If the prosecuting authorities choose

in the face of that, and in the face of my views on

that, to lodge an ex officio indictment, it will be

a matter for the court before which that goes to

determine what should happen to it.

DAWSON J: Well, the effect of that really is, "I just will not

conrrnit for trial'.', that is all.

MR BENNETT:	Yes, Your Honour.
DAWSON J:	But that has no legal effect,reall½ at all?
MR BENNETT:	It was thought has sufficient legal effect that

the Director appealed and the appeal was allowed and

the matter was sent back to the magistrat~ with a
direction to proceed and, of course, there are many
cases where the courts have interfered in relation

to conrrnittals and sent matters back to _the magistrate

where he has failed to exercise his function or performed

his function and it is generally considered, we would

respectfully submit, a matter of importance both to

the prosecuting authorities and indeed to the courts

when	indictments are filed to know what the
magistrate has done and why he has done it.	The

question in this case is, does the magistrate have

the power to say, "I regard this as an abuse of process

and will not proceed further." Indeed, that part

case is concerned with the narrower issue of what	of the decision was conceded on both sides. This	constitutes an abuse of process before the magistrate.
What Your Honour puts to me about the ultimate effect of it, in my respectful submission, has to take into account the large number of decisions over the last
20 or so years where the courts have dealt on appeals by either side, or on applications by either side,
with matters before a magistrate on a conrrnittal and ordered him to do certain things or not to do certain things or set aside his decisions.

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Grassby

DAWSON J:  · Yes,

that is because the magistrate can affect certain rights but he does not affect any rights

by corrmitting or refusing to corrmit; the rights

he affects are by deciding whether the person

should go on bail, should go free or shall remain

in gaol.

}1R. BENNETT: Well, Your Honour, in my submission, the rights

are the first ones, the committing or not committing.

It is true that his failure to commit may not mean

that the man does not go on trial and his committing

may not mean that he does; that is true because there

can be a no bill and there can be an ex officio

indictment but the fact that, in 99 cases out of 100

his decision stands - that may be an exaggeration in

relation to no bills but in obviously a substantial

proportion of cases his decision stands and the
influence his decision necessarily has on the

decision of the prosecuting authorities to no bill

or to indict, in my respectful submission, make what

he does a matter of importance. There is a statutory

procedure laid down; that is the normal procedure and

the mere fact that it is possible to achieve the
ultimate result either way by administrative

procedures is not a reason for downgrading the

importance of what he does or for the courts not

interfering where appropriate.

DAWSON J: What I am putting to you is clear enough and that is

the problem. Obviously the magistrate does not perform

the ftmction of a grand jury. The grand jury's functions have been subsumed in those of whrever it is who is the

prosecuting authority now, the Director of Public

Prosecutions, I assume,and the magistrate never did

have that function.

}1R. BENNETT:  Yes, that is clearly so, Your Honour. If the Court

pleases.

DEANE J: Was this one of those cases where, at the end of the

Crown case, there could be an election for summary

trial by the magistrate?

}1R. BENNETT:  No, Your Honour. I say no - I am virtually certain

the correct answer is no. If it is not, no doubt I

will be corrected on one side or the other but, so

far as I am aware, no.

BRENNAN J: The question really is, I suppose, whether

section 41 is a code, is it?

}1R. BENNETT:  In part, Your Honour, and also in part what

section 41 means because one of our submissions is

that section 41(6) does incorporate within it by
implication the power presently exercised. Subject

to that, that is one of the questions.

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TOOHEY J:  Do you mean a power to stay or a power simply

to decline to commit?

MR BENNETT: A power to stay, we would submit, Your Honour -

I am sorry, in relation to section 41(6)?

TOOHEY J:  Yes.

MR BENNETT:  A power not to commit. The magistrate did not

treat the matter that way. He treated it as an

independent power but, we would submit that is

merely a matter of labelling, if the Court comes

to the conclusion that it arises under section 41(6).

Now, the state of what we have called the

indirectly relevant authorities is very usefully

summarized by the Court of Criminal Appeal at

pages 271 and following. I do not propose to take

Your Honours to any of the large number of cases

referred to there; merely to remind Your Honours

that what Their Honours say is that there are a

large number of cases in which the courts have
referred to the possibility of a magistrate

exercising these powers and in some, with approval,

in some, with disapproval. The disapproval seems

to have been mainly in South Australia where there

is an express denial of the power. It seems to have been accepted in England; the majority view seems to have accepted it in New South Wales and there are

references on page 273 to the administrative or
judicial nature of the proceedings before the
magistrate. There is a reference at page 273, line 24,

to the views expressed by Your Honour the Chief Justice

in SANKEY V WHITLAM on that subject and there is a line

of cases which seem to have left that matter primarily

undetermined, although it probably does not have any

effect on this case. It is a relevant background

matter in answering the ultimate question.

BRENNAN J:  Is there any case in which the power has been said

to exist with respect to a statute cast in the form

in which section 41 is?

MR BENNETT:  No, Your Honour. It has not been in long enough.

Some of the authorities referred to at pages 271 and

272 were decided after the amendment to the JUSTICES ACT.

Subject to that, no.

(Continued on page 10)

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Grassby

BRENNAN J: Did any of them say that such a power existed

despite the amendment into the form:r or the present

section 41?

MR BENNETT:	So far as I can recall none of them have put the matter that way or discussed it in that context.
It has rather been treated on the basis that
abuse of process is a doctrine which has developed
substantially, of course, in the last two decades
although to some extent before that and it is
a doctrine which the courts superimpose on
legislative rules and, in a sense, every court
has some sort of codification of its powers and
duties in matters coming before it and the doctrine
of abuse of process is superimposed by the courts
on that and we would submit. that the view that
has been taken, and correctly taken, by the Court
of Criminal Appeal is that such a power extends to magistrates in committal proceedings.

But I do stress to Your Honours that is

not in issue before this Court. That was found

by the Court of Criminal Appeal, there is no

notice of contention and, as I understand it,

there is no intention on the part of the Crown

to dispute that part of the proposition.

BRENNAN J: Which part is not in contention?

MR BENNETT:  What I understand is not in contention is

the proposition accepted by the Court of Criminal

Appeal that a magistrate has power to stay

proceedings before him for abuse of process.

The limitation which the Crown seeks to defend

and which the Court of Criminal Appeal imposed
and which I challenge is that the power is strictly

limited to abuse relating to the committal

proceedings rather than abuse relating to the criminal proceedings as a whole or the trial. That, as I understand it, is the issue between

us.

BRENNAN J: Speaking for myself, looking at section 41(6),

I would have thought the question is whether there is any room for any doctrine which is

inconsistent with the words of the statute.

MR BENNETT:  Your Honour, we submit, first, that that is

contrary to what was decided below and there

is no notice of contention; secondly, that it

is, for the reasons I have been outlining, not

the case because the doctrine of abuse of process

is always superimposed in the face of statutory

requirements. It is a doctrine which, by its

very nature, is one which, perhaps unless

excluded, is construed as applying to courts
and, for this purpose, magistrates hearing committal

proceedings.

C2T52/1 /ND	10	11/4/89
Grassby

BRENNAN J: I must say I would find it a novelty greater

than any that I have heard thus far today to

find a doctrine imposed by the courts which allows

a court to decline to perform that which is

directed in mandatory terms in a statute.

MR BENNETT:  Your Honour, there are many cases which ·come

before a superior court such as the supreme court

where a statute imposes a consequence in favour

of a plaintiff or a defendant in a particular
case - in favour of a plaintiff, I suppose, for

present purposes - yet the court has an inherent

jurisdiction if the proceedings are an abuse

of its process to deal with them appropriately
and to deal with them without asking the question
the statute asks. That is probably an aspect
of the rule which this Court laid down in - I

think it is ABERDARE COLLARIES but I may have

the case wrong, that where a statute imposes

a jurisdiction on a court, it is to be construed

as taking that court with all its rules and

practices and, no doubt, where appropriate, its

inherent powers, such as to strike out for abuse

of process.

We would submit that it is in that category

that the present matter lies.

MASON CJ:  In any event, you had better take it, Mr Bennett,

that it is for you to establish that there is

inherent in the magistrate in his exercise of

committal power in relation to committal proceedings
power to stay proceedings for an abuse of process

in those proceedings.

MR BENNETT:  Yes, if Your Honour pleases. Your Honour,

in that case, what I will do is proceed with

the argument as set out in the outline and I

will supplement it in the morning in relation

to that matter.

The outline proceeds on the assumption that

the Court of Criminal Appeal was correct in that

aspect of its decision and that the argument

wtri.mI will put to Your Honours in the morning

on it is accepted - this part of the argument.

DEANE J: There is a middle ground though, is there not,

and that is that accepting that the power exists

as a general proposition there still remains

the question whether it exists at the 41(6) stage

when all that remains is action by the magistrate?

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Grassby

MR BENNETT:  Yes, that is the second of the matters with

which I propose to deal. That is specifically dealt

with at point 2b on page 2 of my submissions.

What we say about that is one can judge whether

there has been an abuse of process more easily in

retrospect than in prospect and that is really

what this magistrate did. He said - - -

DEANE J:  Except in one sense, though, the proceedings

before the magistrate are at an end and the question
is almost whether it would be an abuse of process

to commit.

MR BENNETT:  When Your Honour says they were at an end,

everything up to that point is tentative.

DEANE J:  The point I was really making is an order

staying proceedings at that stage is effectively

directed only to himself.

MR BENNETT:  Your Honour, except that it is always open to

him, if necessary, to hear further evidence, to

deal with matters. The fact that the consequence is that the proceedings have gone almost the whole of the way should not, in my respectful submission,

be confused with the issue of whether an abuse of

his proceedings is occurring, has occurred or will

occur. The abuse may not prevent the proceedings

taking place. What the abuse does is make them

unfair and what the magistrate says is, "At·the

beginning of the proceedings it is not always
possible and was not possible in this case for me

to predicate that there was such an abuse as was

going to make these proceedings unfair. I proceeded

with them, I heard them, certain matters emerged",

and those matters included a considerable quantity of

perjury, of concocting of evidence, matters of this

sort which I will take Your Honours to in due course.

He then, at the end of the proceedings, says

"Now I see what has happened, and I put that into

these scales along with the delay and along with what

I now know about when the appropriate matters were

known to the prosecuting authorities and the

relationship of the two offences, and matters of

that sort; now in retrospect I can see that there

has been an abuse and that abuse has caused

prejudice and has caused unfairness and therefore

the only thing I can do about it is to stay the

proceedings before me. They will not proceed

further for me to take a step which, in the light

of the abuse of the proceedings before me would be

unfair to the defendant," and that, we submit, is

applying the doctrine at a stage where it is

perhaps even more appropriate for it to be applied

than at the beginning of the proceedings because

he then does know all the relevant matters.

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GRASSBY

DEANE J:	What if he were to say in terms, "I have
reached the section 41(6) stage.  I am not of a
section 41(6)(a) opinion, therefore the case is a
41(6)(b) case, but I consider that the proceedings
are an abuse of process", now, does not that take
us very close to the very narrow point that we
have to look at?
MR BENNETT:	I would submit not, Your Honour, because what he is really saying is the proceedings over the
last few weeks have been an abuse of process,
"had I known at the outset what I now know" - - -

DEANE J:  I have put it wrongly. I will reframe what I

put to you to take that into account, but if
he says, "I consider this to be a section 41(6)(b)
case" the question then arises whether abuse of
process, as it were, has passed out of his hands,
even going all the way with you up to that stage

and as it were has passed into the hands of the

next stage.	I am not indicating any view,
Mr Bennett.	I am just indicating something that

I would be assisted with if, when you come to it, you would direct some attention to it.

MR BENNETT:  Can I deal with it now, Your Honour? The

fallacy, in my respectful submission, with that

to which he has come is that 11 1 am of the opinion	formulation lies in the assumption that the conclusion
that having regard to all the evidence a jury would
not be unlikely not to convict". There is a double meaning in the subsection which makes it hard to read.

(Continued on page 14)

C2T53/2/HS	13	11/4/89
Grassby

MR BENNETT (continuing).:  But the real conclusion to which he

has come, on the hypothesis we are considering, is,

"On certain evidence which has been put before me,

I would be of that view but that evidence was put

before in circumstances amounting to an abuse of

process. I have an jnherent jurisdiction once that

happens to stay my hand and take no further steps

on that evidence that would operate unfairly to the

defendant," the very unfairness being that it on its own, but for the the fact that it is an abuse of process, would lead to a committal. That, in

my respectful submission, is a decision which he

can make just as well, if not better, at the stage

where he makes it than earlier.

Now, I have taken Your Honours to MILLER V RYAN.

The point, of course, which is stressed by

His Honour Mr Justice Rath in that case, is that

as a matter of reality and ignoring the precise

conceptual nature of the proceedings, the committal

proceedings are one step in an overall process

which starts with a summons or .a charge and ends
with a trial. In that sense, once one holds that at

a given stage those proceedings are before the

magistrate, there is much to be said for the
proposition that his power to stay for abuse of
process should enable the whole of the proceedings

to be looked at to see where the unfairness lies

and how it arises.

What the distinction which the Court of Criminal

Appeal has drawn creates is an artificial division

requiring him to look at the abuse of process, in

effect, with blinkers. He can only consider how

far that abuse has hindered or affected the evidence

before him at the committal, not how it might

prevent a fair trial. It would result, of course,

in many cases, in a double inquiry. The first inquiry

where one· looks in a limited way and says, "Has

the abuse affected the matter before the magistrate?"

And then, the second case, "Has it affected fairness

witnesses had died during a period of delay would	at the trial?" For example, the fact that defence
have little practical effect on the fairness of the
committal because, although the defence has a right
to call witnesses at the committal, the structure
of the legislation is such that one normally does
not do so and for good reasons which are understood
by all who take part in them.

But, on the other hand, that would have a very

significant effect on the trial. It would seem

surprising if the magistrate, in weighing the matter

of abuse of process, should be obliged to put those

matters out of his mind and say, "Well, certain

aspects of the abuse concern my proceedings; certain

aspects concern the trial and I will shut my eyes

t_o one of those sets of aspects." I should add,

C2T54/l/VH	14	11/4/89
Grassby

anticipating myself for a moment, that in this case,
of the twelve grounds only two were relevant to

the trial alone, but I will come to that in due course.

The argument based on section 41(6) itself is

a very short one. It is, in a sense, a separate

argument, but it perhaps can be conveniently put at

this stage. If Your Honours go to section 41(6),

Your Honours will see that the relevant function of

the Justice - it is paragraph (a):

if of the opinion that, having regard to all the evidence before the Justice or Justices, a jury would not be likely to convict the

defendant -

order him to be discharged.	The keyword is "likely."
Is he of the opinion that the:

jury would not be likely to convict.

And a, jury is defined in subsection (8) as:

A reference to a reasonable jury properly

instructed.

We would submit that it is not inappropriate to, in looking at this hypothetical reasonable jury,

hypothetically properly instructed, to say that that
must take place at hypothetical proceedings which

are themselves not an abuse of p~ocess, at fair hypothetical proceedings, a fair trial properly conducted. If the magistrate comes to the conclusion

that there could not be a fair trial properly

conducted because the events took place 30 years ago,
say, then, in my respectful submission, he should

be entitled to say, "A jury is not going to be likely to convict because the proper order would be striking out the whole proceedings as an abuse of process."

(Continued on page 16)

C2T54/2/VH	15	11/4/89
Grassby

MR BENNETT (continuing): That seems to be supported by the

second reading speech of the Justices (Amendment) Bill.

I have copies of those and I hand up seven copies.

It is only a three-page speech. Your Honours will

recall that this legislation was passed,as the

Attorney-General says on the first page, following

the decision of the Court of Appeal in the case of

WENTWORTH V ROGERS where, in effect, a magistrate

was ordered to commit, although he had declined to do

so on the basis that he formed a view that a jury was

unlikely to take a particular view of it. Now, on

page 3749, the third of the pages of this short speech,

Mr Sheahan says - this is the top line of the page:

If the section remains.unamended then many more

people must be committed for trial. The

magistrates cannot filter out those matters that,

in the communities interests, do not require trial

by jury. This is a useful and necessary

function that magistrates of this State have

performed for many years.

He refers to an increase in the number of cases since

the decision in WENTWORTH V ROGERS. He says:

The proposal does not just blindly put back the clock ..... is sensitive to the criticism

made by members of the Court of Appeal that

..... there is an intrusion. This proposal

does not require the magistrate to determine

what a jury should or will do, but only calls

for an assessment of whether a jury is likely

to convict upon the evidence before him.

It is not necessary for the magistrate to

determine guilt when making this decision,

and it is not appropriate that he should do

so. If the magistrate is of the opinion that

a jury is likely to convict the defendant of
a serious offence he commits him for trial,

otherwise he discharges him.

Now, in the overall context we would submit that

is certainly not inconsistent with a power to take

overall abuse of process into account in making the

decision under section 41(6). I stress that is an

alternative approach to the question of statutory

construction. But in any event it would be surprising,

bearing in mind, that second reading speech and the
purpose of the legislation, if the effect of the

precise requirement as to what the magistrate does

is that he is denied any power to look at abuse of

process at the trial. Finally, on the first submission,

we submit that there is no policy reason why the task of identifying an abuse of process should be regarded as any more difficult or delicate than any of the other

tasks entrusted to the magistrate; indeed, it is less

difficult than some of them.

C2T55/l/MB	16	11/4/89
Grassby

May I come to the second matter, which is the

question whether the abuse in this case was an abuse
of the committal proceedings or merely potentially

of the trial proceedings or both. In order to deal

with this it is necessary to take Your Honours to

volume I and to show Your Honours a little of the

history of what took place. There were three persons

who were charged in the committal proceedings before

the magistrate. There was a Mr and Mrs Sergi and

there was the present applicant.and the substantive
charges involved conspiracy and there was this

additional charge in relation to, I think, two of the

defendants concerning criminal libel. The allegations

concerned a document which is known sometimes as the

four-page document and sorret~s as the disinformation

document; the second phrase involving a word which

I hope is not yet in the dictionaries. The document

itself appears at pages 203 to 206 of volume II.

I will not take Your Honours through the document at this stage but I would ask Your Honours at some

stage to glance through it.

(Continued on page 18)

C2T55/2/MB	17	11/4/89
Grassby

MR BENNETT (continuing): It is an anonymous document. It

sets out a number of matters which were referred

to by the magistrate and which are said to be

non-defamatory and merely to be factual matters.

It calls for further investigation in relation to

a murder investigation and it puts the case in

general summary that the death of Mr Mackay was
not the action of a professional killer and it
puts various reasons for that.

In the course of doing that, in a few places in the document it suggests that particular persons

may have been involved. It is that aspect of the

document which is said to constitute the criminal

defamation.

Now, the case of the prosecution before the

magistrate was that this document was created and
that it was published in the way in which it was
published - and I will come to that later on - at

the instigation of Robert Trimbole and for the

purpose of diverting suspicion from the true

murderers towards people known to be innocent and,

indeed, persons with a close association with the

deceased and that it was deliberately put forward

as part of a conspiracy to divert investigation

from those genuinely responsible for the death;

that being done at the behest of the real murderers.

Now, that was an allegation of the utmost

seriousness. It was an allegation to which weeks

of committal proceeding were devoted. It was an allegation supported only by the evidence of one

man, an anonymous witness known generally as "Mr Smith"

throughout the proceedings and his evidence was that he was a drug dealer; he was engaged by Trimbole for

the purpose of dealing in drugs and dealing in money

and that he, generally, was a trusted and senior

assistant of Trimbole and his evidence directly

implicated the present applicant. The finding of the magistrate, after a lengthy

judgment, was that this man's evidence had to be

rejected in its entirety; that it had been concocted

in the course of lengthy conferences with police

officers. There are in two yellow volumes which

have been lodged with the Registry certain of the exhibits before the magistrate, not reproduced in

the appeal books. I will not, at this stage, take

Your Honours to that or seek to do so, although I may do so in a moment but they contain exhibits which show the piecing together of this man's story

with the assistance of police officers and that was,

in effect, the finding of the magistrate.

C2T56/l/SH	18	11/4/89
Grassby

There· are, for example, in these yellow volumes,

conversations, for example, where they are discussing

money; where he says there were $100 bills, $50 bills

and $20 bills which were placed into an envelope that

were handed to certain people and then, in the course

of the tape of the discussion with the police officers,

someone says, "Well, just a moment, were there $100

bills at the time?" There was a discussion as to

whether there were. No one is quite sure so the

witness says, "Well, we will just say it was in S0s

and 20s" and the police officer says, "Yes, that would

be safer".

There is material of this type the whole way

through and the magistrate took a very strong view,

not surprisingly, of Mr Smith's evidence and of the
fact that these charges had been brought against the

various defendants because of his evidence.

(Continued on page 20)

C2T56/2/SH	19	11/4/89
Grassby

MR BENNETT (continuing):  No doubt the publication, limited,

as I will show in a moment, that it was, of the

four-page document, as part of a plot at the

instigation of murderers to divert suspicion

from those murderers is a very serious case of

criminal defamation and one can well understand

why those proceedings might be added as a

substantive back up to conspiracy proceedings.

And the magistrate so found.

Once one stripped away all that element

from the case, one had left a very, very different

allegation. Certainly, one had the same basic

overt acts by the applicant in the handing

of this document to one person, possibly two,

and a short conversation with each of them, the

same overt act, but that overt act had a totally

different character. Instead of being part of

a conspiracy at the behest of murderers to conceal
the existence of that murderer by diverting suspicion

to innocent people, it was nothing more than

a Commissioner of Community Relations being perhaps
over zealous in taking a document which had come

into his possession and using that document without

applying to it the critical mind that should

have been applied to it in a way that it was
hoped would lessen racial and ethnic intolerance
which was occurring in Griffith as a result of

allegations of mafia involvement and matters

of that sort.

That may still be a wrong thing; it may, on one view of it, amount to the offence of criminal

defamation but it is a very, very different sort of criminal defamation and on a scale of 1 to 10

it is 1, whereas what he was initially charged

with was 10. And the magistrate, when he had

to make his decision in relation to abuse of

process, in effect was saying, "Well, look, here

one has an eight-year old offence, an offence

never before charged in Australia except on private
charges''	- there may have been one case in the

last century in Victoria - "a charge which is

virtually never brought even by private litigants",

although there has been a little rash of it in

recent years as I will show by private litigants

as ajuncts to defamation proceedings, "and it
is brought initially for good reason because

it is part of a very serious conspiracy allegation

where we want to have a substantive charge," once

that has gone and once that is shown to have
been concocted and brought forward by the authorities

in a manner which is so unconscionable and when

one adds to that the publicity at the time of
the committal proceedings, there was a book

published during the committal proceedings in

C2T57/l/ND	20	11/4/89
Grassby

which allegations about the present applicant

were ventilated and as Your Honours will no doubt

have observed it is not unknown in Australia

when there are criminal charges against public

figures for substantial publicity to be given
at the time of various hearings of those charges
to unrelated allegations against people involved
in them, that was done during the committal
proceedings, and, of course, one can imagine,

indeed, if Your Honours, do not yourselves

remember the barrage of newspaper and television

publicity every day which accompanied the

spectacular allegations made against the applicant

in these committal proceedings - - -

MASON CJ:  But what has this got to do with the pointnumber 2

in your outline of submission, Mr Bennett?

MR BENNETT:  What I am leading up to, Your Honour, is

demonstrating that the abuse of process which

was committed was one which was very much concerned
with the committal proceedings before the magistrate
and it was not merely one looking forward to

the trial. And what, indeed, I was about to

come straight to was the 12 points made by the

magistrate in his judgment at page 181. May

I just show Your Honours how he gets to that

point.

His Warship's judgment starts at page 175 and he sets out then some legal argument and

I will come to that in a moment. He then, at

page 176, sets out some quotations from a number

of earlier decisions about abuse of process.

(Continued on page 22)

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:t:1R BENNETT (continuing):  He is, incidentally, although

understandably, as Your Honours will see why,

misquoted by the Court of Criminal Appeal on a

material matter at page 176. If Your Honours,
keeping page 176 open, go to page 268 in Volume II,

Your Honours will see that - and this is indeed the principal

criticism the Court of Appeal make on this aspect

of the case - at line 7 they say:

He saw the issue as being whether Mr Grassby

could "have his right to a fair trial

fulfilled in all the circumstances".

And Your Honours inverted commas around those words.

They are taken from page 176, line 21, where

His Worship is quoted as saying:

The issue is whether the defendant can

have his right to a fair trial fulfilled,

in all the circumstances.

In fact, all that has happened is the shorthand

writer has put the inverted commas in the wrong place.

Your Honours will see that what His Worship was doing was

citing page 11 of an unreported decision of

Mr Justice Kirby in the course of setting out a number

of other related matters. Might I just hand to

Your Honours page 11, being the page of the unreported

judgment being quoted. At point 5 of that page there

is the quotation, which .His- Worshi.p.~starts at line 17.

Your Honours se& it says:

on the question of delay~ held that,

"There was no fixed formula which exists -

those words -

"There.was no fixed formula which exists -

appear half-way down page 11. There were then dots

to the words:

abuse of process"-

which appear two lines further down.	Then the next
sentence the magistrate states:

The issue is whether the defendant

et cetera is the next sentence with one or two words

changed. So all that has happened is, while the

magistrate was dictating his judgment the shorthand

writer has got the inverted commas in the wrong place,

something which, of course, is very easy to do. The

Court of Criminal Appeal has then elevated that mistake to the statement on page 268. In fact, the

magistrate never says that he saw the issue before

him as whether Mr Grassby, which is what the Court

0f Criminal Appeal says at 268 line 9:

C2T58/l/VH	22	11/4/89
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"could have his right to a fair trial

fulfilled in all the circumstances".

BRENNAN J: Except that the word "claimant" has been changed to

"defendant".

MR BENNETT:  Yes, sir. The whole quotation is - he uses the

word "was" rather than "is" in the previous line, too.

Whether that is the shorthand writer mishearing or

whether it is a slip by the magistrate in quoting,

one does not know. But we would submit it is

reasonably clear from the sentence as a whole that

he is intending to quote the passage.

TOOHEY J:· Presumably quoting it for the purpose of adopting

it.

MR BENNETT: Well, Your Honour, when one looks at the context

of the page, he is quoting a lot of passages discussing

abuse of process generally. Of course, he is

adopting the passage, but he is not necessarily saying

that every aspect of it, including the aspect dealing with the right to a fair trial is the aspect which he

is concerned with in that case because when he

gets to the twetve points, the question of the fair

trial is never put as one of them. He never actually

puts in those twelve points that the fair trial

itself is not likely to occur. \.All his point:s

involve that but they are all equally applicab1e,

as I will show in a moment, to the proceedings before

him.

(Continued on page 24)

C2T58/2/VH	23	11/4/89
Grassby

TOOHEY J:  But you would not expect him, would you,

Mr Bennett, to identify what is described as the issue as being one of the 12 points, but rather the

12 points going to what has earlier been said to be

the issue?

MR BENNETT: 

Well yes, Your Honour, except that that is not

the way his judgment reads. It is unlikely as a
matter of judgment drafting that one would put to

one's statement of what the whole issue he has to decide is in the middle of a number of quotations

from other cases. If one underlines those words

in the quotation, as we submit, on line 20 on

page 176 and then reads through the quotations from

other cases and comments on them on the whole of

page 175 and page 176 it would be surprising if in

the middle of that in that context he was setting
out the conclusion from the cases as to what the

issue before him was.

TOOHEY J: 

Well what were the 12 points said to go to?

MR BENNETT:  They are a miscellany, Your Honour. They are

on page 181.

TOOHEY J:  Yes, but in the end what were they said to bear

upon? Did each one have a separate force of its

own, or in totality were they said to amount to or

to justify some sort of conclusion?

MR BENNETT:  He did not specifically say. He did not answer

that question. I suppose one would read it as

meaning '~n these 12 points clearly this result

follows~' Whether it would follow if one had

11 or 10 or nine of them is a matter I do not have

consider and that is probably the best one can

say about it.

MASON CJ:  Mr Bennett, if you go back to the sentence that

precedes the reference to CARVER, is it not clear that

the magistrate did regard this as the issue before

him, because he says at line 9:

From this decision, I draw a number of

conclusions, firstly, the tests laid down

are not necessarily exhaustive of possible

bases for staying proceedings. Secondly,

a stay should only be granted in exceptional

circumstances and thirdly, in the ordinary

course, such application should be made

to the trial judge.

C2T59/l/HS	24	11/4/89
Grassby

MR BENNETT:  Well, he says the trial judge, that is as I understand

it in this case, the sitting magistrate. It is the

trial judge as opposed to an appellate court. \,That that

is dealing with, the third point,is the statement

made in many of the authorities that one should make

the application at the trial rather than on an appeal

and that one does not seek from another court an order

staying proceedings before a different court on the

grounds of abuse of process.

:MASON CJ:  I should have thought that the magistrate was rather

referring to the principles that apply in relation

to stay for abuse of process in relation to the trial

and then is naturally substituting himself as the

magistrate for the trial judge and if so then he

was in error as the Court of Appeal so held, assuming

that the court were to take the vie-.:·;r contrary to the

submission that you make as a matter of principle.

MR BENNETT:  Well, Your Honour, all the cases are cases involving

a trial judge except the one decision of MILLER V RYAN.

That is the only case where it is specifically said,

and subject to the unreported decisions referred to

by the Court of Criminal Appeal, that a magistrate

may exercise the power. In that sense it is correct

that the decisions are normally made to the trial

judge. But all His Worship is saying - - -

:MASON CJ:  And again, you see, if you come down to line 46

where the magistrate returns again to what Mr Justice Kirby

said and then says:

and indeed acknowledged in the particular

circumstances, that the magistrate concerned

or a trial judge, may well be in a better

position to assess the question of abuse.

MR BENNETT:  That, again, harks back'to the same point, that

it is a matter that should be determined by the

person hearing the matter rather than on a subsequent

prevent a body abused proceeding with the matter. appeal or on an application to some other body to (Continued on page 26)

C2T60/l/MB	25	11/4/89
Grassby

MR BENNETT (continuing): It is the trial judge used in the

context of the person conducting the proceeding

abused as opposed to some other body, appellate

or otherwise, rather than the trial judge as

opposed to a magistrate and that is, really, all

he is saying when he says "It should be made to

the trial judge", as I understand it in this case,

the sitting magistrate.

Then, His Worship goes on, on page 177 and,

at line 9, His Worship says:

There doesn't seem to me to be any restraint

placed upon a judge or a magistrate to stay

proceedings at any time during their course,

if it appears an abuse is occurring.

So he is talking about present abuses; that the

judge or magistrate can sta.y proceedings at any time

if an abuse is occurring. Then he refers to the

proceedings. He refers to the nature of the

defamation being made known to the Minister of

Police in 1980, nothing being done to investigate

it:

There's no doubt in my mind, that had it

not been for the Nagle Special Connnision of

Enquiry and the witness Smith, this charge

would never have been brought ..... It is in

essence, a back up charge to the conspiracy,

actionable per se, but receiving an

additional and more sinister thrust from

the evidence of Smith. Perhaps the -

and the word "respected" should clearly be restricted -

restricted publication it received at the time

would hardly have warranted prosecution in any

event.

Then he goes on to the other aspects of the document.

Over the page, he refers to the witnesses and their

difficulties of recollection, particularly at line 45

on page 178. He refers to Mr Maher's honesty but:

an aura of uncertainty and imprecision, quite

understandable, given that these events

occurred some six years earlier.

C2T61/l/SH	26	11/4/89
Grassby

MR BENNETT (continuing):

The only matter I can agree with the

establishes at most, that

special commission on, as far as evidence

Mr Grassby was impelled by a misguided

sense of duty, to prevent the
defamation of a racial group, namely

the Calabrians.

Then he says that nevertheless a person in his

position should not have done that.

MASON CJ:  The other question I was going to ask you,

Mr Bennett, where do we find in the judgment

the concluding words taken from the quotation from

Mr Justice Kirby, "abuse of process"? At the

moment it is difficult to tell what was the

passage in Mr Justice Kirby's judgment that the

magistrate quoted and it is not possible to

identify the passage from the page that you have

handed up.

MR BENNETT:  Your Honour, he says it is page 11 and what I

have handed to Your Honours is page 11. It is clear

that the magistrate, like a lot of people who are

reading something like a judgment and then come to

a quotation speed up their voice. It is an error

a lot of counsel fall into I suppose in making

submissions too. The shorthand writer seems to

have done the best that can be done by picking up

what he picks up and Your Honours see "There is

no fixed formula which exists"; those precise

words appear at point 5 on page 11 after the

word "naturally". The very fact that the word

"naturally" is left out is a partial indication

of the speed with which the shorthand writer is

attempting to cope with that.

The words "abuse of process" appear two lines

further down in the words "an abuse of the court's

process". Presumably that has been elided,

no doubt again because of the speed with which some-

one reads a quotation.

(Continued on page 28)

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Grassby

BRENNAN J:  Were these proceedings taped or recorded by

shorthand?

MR BENNETT:  I do not know, Your Honour. I am told they were

taped and I suppose if necessary the tape could be

obtained. I will have some inquiries made about that

over night. But the reference to abuse of process

clearly appears, although with an interpolated word

and then the next sentence has, I think, only one
word altered; there are some minor grammatical

alterations. There is a change from "claimant" to

"defendant" and "all of the circumstances" becomes

"all the circumstances". But, we would submit,

it is quite clear in the context that it is simply

an inaccurate recording of an extract being read

from a judgment. His Worship then goes on, on page 179

at line 15, to refer to:

the development ..... over the next three or

four months in the manner revealed by Exhibit "67A"

and "68A" -

and those exhibits are set out in full at the beginning

of the yellow volumes -

which reached its ultimate conclusion in Smith's

statements, now in evidence before me. There

seems little doubt that the N.S.C.I. report

resulted in the defamation action quite properly

brought by the McKay family. But it was Smith's

evidence alone that :provided the links between

the various pieces of inconsequential evidence
to form a web of conspiracy. Smith made
many allegations, the most serious at least in

the present case concerned Mr Grassby's

association with Trimbole and the plan put forward

by Grassby to Trimbole, to obstruct police

investigations -

and so on. All of that is disbelieved and he says:

I don't propose to repeat my findings and

comments -

and I will not go through those at the moment.	He
then on the following page at line 11 says:

To recapitulate, the offence for which Mr Grassby

is now charged, occurred on 29 July 1980

and became known to police at the highest levels,

within weeks thereafter.

I will have more to say about that when I get to a

separate ground about that.

C2T63/l/MB	28	11/4/89
Grassby

MR BENNETT (continuing):  He says:

No further action was taken at the time
and no adequate explanation has been given

for this failure to take the matter further.

Additionally ..... nothing further occurred

in regard to the document -

everything -

had been investigated in 1980 ..... I think

it highly unlikely that Grassby would ever

have charged with this particular offence.

At line 28, he refers to it:

as a back up charge, criminal defamation

against not only Mr Grassby but also against

the Sergis.

He refers to him being:

sued civilly.

He then says, at line 39, still on the abuse of process subject:

During the course of the five week committal proceedings, in which the evidence was

principally concerned with the conspiracy

charge, Mr Grassby was subjected to the

most serious unsubstantiated allegations

that could be made, given his past and present

position in the community, by a person who

I have found, gave unreliable evidence.

Further, there was little or no attempt made

to corroborate any of that person's

testimony, which in circumstances, given

his admitted perjury in other proceedings

and string of indemnities for the most serious

admitted criminal activity, demanded that

fullest extent. With Mr Grassby's discharge

from the conspiracy, all that is left is

a charge that in my opinion would never

have been brought by itself.

his allegations be substantiated to the

DAWSON J:  All this goes to the prosecution, does it not,

and the question of prosecution or not is not

for the magistrate and if there is to be a

prosecution it cannot be an abuse of the process

to have committal proceedings?

MR BENNETT:  Your Honour, one of the five matters regarded

by Mr Justice Kirby as relevant in abuse of process

in JAGO's case was the seriousness of the criminal

C2T64/1 /ND	29	11/4/89
Grassby

conduct alleged and we submit that one of the

matters conversely one is entitled to take into

account in support of an allegation of abuse of process is the absence of seriousness of the

ultimate charge, particularly where the charge

is one which would never be brought in normal

circumstances, was only brought because of other

matters, those matters have disappeared and been

shown to be accompanied by abuse and one has

that left.

DAWSON J:  I am coming back to the same problem, it is

all overlaid by a misconstruction of the function

of the magistrate in his own mind. He really

believes that he has, within his hands, the

ultimate fate of the prosecution. He is not

concerned with that and the prosecution may

be unfair, it may not be, but that is for someone

else. And as I say, if there is to be a prosecution,

then it would be unfair that there were not

committal proceedings.

MR BENNETT:  Your Honour, in my respectful submission,

he is entitled to lDok at abuses or unfairness

in proceedings before him.

DAWSON J:  Yes, in the proceedings but what he is talking

about here is the unfairness of bringing the

charge at this stage, of launching a prosecution.

(Continued on page 31)

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MR BENNETT:  But that must be unfairness in the proceedings

before him. If a trial judge is entitled to say,

"I stay the proceedings on the indictment in

front of me because it is 30 years old," take the

extreme case, "and I regard it as an abuse of

process to have the trial after 30 years", why

is a magistrate not euqally entitled to say,

"I regard it as an abuse of my process to have

a connnittal before me for something 30 years old."?

DAWSON J:	Because it cannot be. Let us assume that there is
a prosecution, or to be a prosecution, a decision
which is not left to the magistrate. It would then
be wrong that there were not connnittal proceedings.
MR BENNETT:	It would be an additional unfairness to the accused,

yes.

DAWSON J:	Yes.
MR BENNETT:	But that is something, I suppose, having made that

submission, he would have to live with. But it would

be unlikely, one would have thought, that there would

be a subsequent indictment where a magistrate held

that the proceedings before him were an abuse of

process. It is possible. But the unlikelihood of

that is such as to make that a consideration which,

on balance, is not entitled, we would respectfully

submit, to a great deal of weight.

Then His Worship goes on at line 50 on page 180:

If connnitted for trial and if he took his

usual place in the listings of such matters -

it would be at least two years, and so on. He

then goes on to the publication of the book and the

notorious publicity about that, and then he says:

for the above reasons ..... the public interest

would not be well served by allowing a matter

such as this charge to continue eight years

after the event.

And then he sets out his twelve points.	The twelve
points are these.	The first is that:

It should have been finalised many years ago, but

wasn't.

And, as I will seek to demonstrate~ although the

Court of Criminal Appeal came to a different view,

the relevant matters were fairly and squarely, we

would submit, before the police at the time in 1980

and nothing was done until many years later and

then only done because something else arose which,

we now know, should not have arisen.

C2T65/l/VH	31	11/4/89
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MASON CJ: Well, perhaps overnight you might give attention

to the passages at the foot of page 152; the

passage at 154 about line 12 and the passage at

182, line 18 because increasingly it seems that

perhaps the critical point in the case is whether

or not the magistrate had power to exercise this

jurisdiction at the stage at which these proceedings

had reached when, in fact, the question had arisen

on which he had pronounced, as to whether or not

he would take action under section 41(6) and then

raised this matter.

MR BENNETT:  Yes, if Your Honour pleases.

AT 4 . 16 PM" THE MATTER ~WAS _i\_T'IJOURNED

UNTIL WEDNESDA~ 12 APRIL 1989.

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