Kumaragamage v McLOUGHLIN

[2000] NSWSC 620

CITATION:	KUMARAGAMAGE v McLOUGHLIN & ORS [2000] NSWSC 620
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 12743 OF 1999
HEARING DATE(S):	27/06/2000
JUDGMENT DATE:	6 July 2000
PARTIES :	DON KUMARAGAMAGE v JOHN McLOUGHLIN
JUDGMENT OF:	Master Macready at 1

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :	1193/1999 & 1194/1999
LOWER COURT JUDICIAL OFFICER :

COUNSEL :	Mr Kumaragamage in person Mr T.A. Game SC with D. Jordan for 1st and 2nd defendants
SOLICITORS:	Smythe & Mallam for 1st and 2nd defendants
CATCHWORDS:	Criminal Law. Jurisdiction practice and proceedure. - Application for certiorari to quash decision to discharge defendants in committal proceedings alleging a perversion of justice under s 319 of the Crimes Act. - In the circumstances no grounds for order sought. - On discretionary grounds the order should be rejected in any event. - Proceedings dismissed.
CASES CITED:	Jayasena v The Queen (1970) AC 618 at 625; Ex parte Cousens; re Blackett (1946) 47 SR at 147; Ex parte Coffey; re Evans (1971) 1 NSWLR 434 at 446-449; Connor v Sankey (1976) 2 NSWLR 570 at 617-619, 628-630; Spautz v Williams (1983) 2 NSWLR 506 at 515-516; Waterhouse v Gilmore (1988) 12 NSWLR 270 at 275. Sankey v Whitlam (1978) 142 CLR 183-84; Connor v Sankey (1976) 2 NSWLR 570 per Street CJ,at 591-592; Regina v Bedwellty Justices; Ex parte Williams (1997) AC 225 at 235-236; Re Robins SM; Ex parte West Australian Newspapers Ltd (1999) 105 A Crim R 555 at 563-564. Spautz v Williams (1983) 2 NSWLR 506 at 516, Wentworth v Rogers (1983) 3 NSWLR 161 at 170-1, Waterhouse v Gilmore (1988) 12 NSWLR 270 at 278.
DECISION:	Paragraph 14

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MACREADY

Thursday 7 July 2000

12743 of 1999 DON KUMARAGAMAGE v JOHN McLOUGHLIN, ANDREW WOZNIAK & MR FLOOD LCM

JUDGMENT 1 MASTER: This is the hearing of a summons in which the plaintiff seeks orders in the nature of certiorari pursuant to s 69 of the Supreme Court Act 1970 and an order quashing a decision of the third defendant in respect of the issuing of a warrant for the apprehension of a defendant. 2 The proceedings have been referred to me for hearing by a Judge of the Court. 3 The matter concerns a hearing of committal proceedings before the third defendant in respect of two committal proceedings. The Magistrate, the third defendant, held that the evidence adduced by the plaintiff, who was the private informant in the proceedings, did not satisfy the requirement for a prima facie case under s 41(2) of the Justices Act 1902 and ordered the first and second defendants to be discharged. The alleged offence, the subject of the committal proceedings, was perverting the course of justice under s 319 of the Crimes Act 1900. 4 The acts alleged by the plaintiff to have been committed with intent to pervert the course of justice relate to the service of a summons alleging that the plaintiff had carried on a public transport service contrary to s 7 of the Passenger Transport Act 1990. The summons was signed by the first defendant in his capacity as a regional manager employed by the NSW Department of Transport. According to an affidavit of service sworn by the second defendant, a solicitor retained by the Department of Transport, the summons was served by causing it to be mailed to the address shown on the summons. The address for the plaintiff shown on the summons was incorrect, although he had lived at that address some three years previously. Apparently the plaintiff alleged that the incorrect address was deliberately recorded on the summons in order to obtain a conviction in his absence. What in fact happened was that the affidavit of service sworn 25 September 1998 was relied upon by a Magistrate, who, in the absence of the defendants who were in fact the plaintiff and his wife, found them guilty. Ultimately an application to set aside the judgment was brought and in due course the proceedings were apparently withdrawn on 19 June 2000. 5 A third person, Mr Patrick Culbert, not a party to these proceedings, is the defendant in a related private prosecution brought by the plaintiff alleging several offences including acts committed with intent to pervert the course of justice. Mr Culbert was not present at the committal proceedings conducted before the third defendant because he had emigrated to live in Ireland but he was represented by counsel. It appears that third defendant’s consideration of the evidence adduced by the plaintiff in the committal proceedings against Mr Culbert has been adjourned pending the outcome of these proceedings. 6 The actual orders sought by the plaintiff in his Summons are as follows

The plaintiffs' claims:-
1. An order in the nature of certiorari pursuant to Section 69 of the Supreme Court Act quashing the Orders made by the third defendant on 22 October 1999 and 27 October 1999 discharging the 1st ` and 2nd defendants on separate charges of breaching Section 319 of the Crimes Act 1900 that both first and second defendants did pervert or attempted to pervert the course of justice
2. An order in the same nature quashing the decision made by the third defendant not to issue warrant for apprehension of Patrick Culbert who did not attend the court for committal hearing whilst the summonses had been duly served upon him.
3. An order for trial against the first and the second defendants.
4. An order for plaintiffs costs.”

7   I observe that there is no power in the court to make an order in the nature of that sought in order 3 and that there are difficulties in the other orders sought by the plaintiff. 8   The grounds advanced by the plaintiff in support of his orders were set out in an attachment to his Summons. They were as follows:-

“a.The statements of evidence and the other exhibits tendered by the prosecution were sufficient to establish a prima facie case against the defendants.
b. His Worship erred in law by rigid application of hearsay rule during committal hearing in order to exclude the evidence tendered by the prosecution in form of statements in accordance with the Justices Act 1902.
c. His Worship erred in law by the application of other series of tests to measure the evidence and exclude the core of the evidence
d. His Worship ignored the law on committal hearing when it was shown to him ie ...."the magistrate must decide whether a jury accepting all the prosecution evidence could (not ought to ) convict the defendant(s). (Lionel Murphy V DPP 1985 FCR 55 6108.) His Worship erred in law by not committing the defendants for trial saying " .... I am satisfied that the offence has been committed by the defendants but I do not think that jury would find the criminal intent therefore I discharge the defendant ...." Or the words to that effect.
e. His Worship was bias and it was evident by:
• Refusal to accept the established law on committal hearing when it was shown to him ie ... " it is not a function of magistrate to weigh the evidence or assess its acceptability …, he is required to assume that whole of the evidence is accepted without reservation by a jury.." (Jayasena V Queen 1970 AC 618 at 624)
• Refusal to issue warrant for the apprehension of Patrick Culbert who had been charged whilst it was evident to His Worship that the person had left the country after the receipt of the summonses.
• Refusal to disqualify himself when it was shown to him that he was bias
f His Worship demonstrated that he had had informal discussion(s) with the defendant(s) and/or their legal representative by saying that defendants were intending to issue subpoenas to outside authorities whilst the defendants had not formally informed the court of such intentions.”

9 So far as the matter in (f) above is concerned the plaintiff conceded that there is no reference to that matter in the transcript and he does not press that ground. There has been for many years a controversy as to the availability of orders in the nature of prerogative relief against orders made by a magistrate in committal proceedings. There is authority for the proposition that this Court has no jurisdiction to make such orders in respect of committal proceedings because the magistrate’s function is executive, rather than judicial, and the Attorney General is not bound to accept a magistrate’s decision as to whether an accused should be committed for trial. See for example, Ex parte Cousens; re Blackett (1946) 47 SR (NSW 145 at 147; Ex parte Coffey; re Evans (1971) 1 NSWLR 434 at 446-449; Connor v Sankey (1976) 2 NSWLR 570 at 617-619, 628-630; Spautz v Williams (1983) 2 NSWLR 506 at 515-516; Waterhouse v Gilmore (1988) 12 NSWLR 270 at 275. 10 To the contrary the rule has been criticised and it has been suggested that prerogative relief should be available where a magistrate has acted without or in excess of jurisdiction. See for example Sankey v Whitlam (1978) 142 CLR 1 per Mason J at 83-84; Connor v Sankey (1976) 2 NSWLR 570 per Street CJ, in dissent, at 591-592; as examples of persuasive authority in other jurisdictions see Regina v Bedwellty Justices; Ex parte Williams (1997) AC 225 at 235-236; Re Robins SM; Ex parte West Australian Newspapers Ltd (1999) 105 A Crim R 555 at 563-564.
11 It seems to me appropriate to first consider whether there might be any possible basis for suggesting that the Magistrate either acted without or in excess of jurisdiction, has made some error of law or there has been a denial of natural justice in the proceedings before deciding whether relief in these present proceedings might be obtained. Accordingly, I turn to the facts of the committal proceedings. 12 The evidence against the first and second defendants consisted merely of two statements made by the plaintiff. One of them set out the allegations against the first defendant and the other the allegations against the second defendant. The statements were tendered at the committal proceedings and His Worship the third defendant ruled on the admissibility of the statements. A substantial part of the statements were rejected and as a result little facts remained in order to found the serious charges which had been brought by the plaintiff. It is this part of the committal proceedings which the plaintiff seized upon to found his argument that there was an error at law. He referred the statement of Lord in Jayasena v The Queen (1970) AC 618 at 625:-

“It is not a function of a magistrate to weight the evidence or assess its acceptability. …He is required to assume that the whole of the evidence is accepted without reservation by a jury.”

13 The plaintiff’s submissions equated acceptability with admissibility. Apart from this error there are also the specific provisions of s 48F of the Justices Act which is in the following terms:-

“48F Rejection of whole or part of statement

(1) Where in any committal proceedings it appears to the Justice or Justices that the whole or any part of a written statement tendered as evidence under this Subdivision is inadmissible, the Justice or Justices shall reject the statement or that part, as the case may be, as evidence. However, the Justice or Justices must not exclude evidence on any of the grounds set out in Part 3.11 (Discretions to exclude evidence) of the Evidence Act 1995.

(2) Where a part of a written statement is rejected under subsection (1), the Justice or Justices shall, by one of the means referred to in section 36 (4), make a record identifying the part that has been rejected and indicating that it has been rejected.

(3) The regulations may, for the purposes of subsection (2), prescribe the manner of identifying a part of a statement that has been rejected and of indicating that it has been rejected.”

14 The section makes it perfectly plain that matters of admissibility can lead to rejection of part of the statement. What is left to the trial judge under Part 3.11 of the Evidence Act is the discretionary aspects of admission in criminal trials. It is worth recording that, as I have noted, the plaintiff appeared in person at the hearing and he was advised by the Magistrate of his right to subpoena witnesses who might not give statements and also advised of the terms of s 48F of the Act. Notwithstanding this the plaintiff appears to have persisted in submissions that the Magistrate should not have rejected inadmissible evidence on grounds other than those appearing in Part 3.11 of the Evidence Act. 15 In respect of both defendants I have gone carefully through the transcript and considered the rulings made by the Magistrate on the statements that were tendered. He clearly rejected substantial parts for proper reasons on both form, hearsay and relevance. There was also the exclusion of certain exhibits which appeared appropriate. In particular, his reasons for rejecting hearsay evidence appears to me to be correct. His Worship summarised the position, against the first defendant, at page 56 of the transcript of 22 October 1999 in these terms:-

I have, in that situation before me I have to consider that information that - that it stands before me in the context of whether or not having regard to all of the evidence the evidence is capable of satisfying a jury beyond reasonable doubt that the defendant has committed the indictable offence of doing an act intending to pervert the course of justice.

So what is left. What is left is that the defendant on prima facie initiated a prosecution of the defendant on a summons at an address which was not at the relevant time the address for service of such a summons for the defendant and in my opinion it is insufficient to meet the test that the evidence that remains before me is capable of satisfying a jury beyond a reasonable doubt that the defendant performed the act of issuing that summons addressed to the defendant at an address which had been the defendant's address, that that was done by the defendant intending to pervert the course of justice. That evidence, standing alone, in my opinion, is not capable of supporting the prosecution.

16   In respect of the second defendant the same process applied and in particular His Worship rejected hearsay assertions of the plaintiff that the second defendant knew the actual address because summonses in other proceedings had been served on 4 June 1998 at the correct address. No attempt seems to have been made by the informant to call evidence from someone else which evidence would not be hearsay and which obviously was available to him. The person who could have given the evidence was his wife on whom summonses had been served on the date in question. Once again the Magistrate came to conclusion in respect of the second defendant in these terms:-

“BENCH: The submissions are that the informant says that the information supports a prima facie case under s319 of the Crimes Act. What I have to consider on the evidence which I have ruled is admissible and now is admitted as evidence is whether or not - and I will go to the test, in accordance with the test it is sufficient to commit the defendant under the charge that he is a person who did an act intending in any way to pervert the course of justice.
……

What remains after a deal of argument and my rulings is the statement by the informant, he starts with the statement of a fact that on 29 April 1997 Mrs Kumaragamage was granted the accreditation to operate a tourist service in accordance with s7 of the Passenger Transport Act. She was the owner of the business National Australia Coach. The informant was appointed manager. On 18 February his wife's accreditation was cancelled by the Department of Transport. An appeal was lodged by his wife. That appeal was listed for hearing on 27 March 1998. The case was adjourned to 4 June on an application by Mr Wozniak because the estimate of the hearing time was four hours and that happened. The informant's wife got the dates mixed up.”

17   His Worship dealt with the rest of the facts before him and continued:-

“The defendant says that was an address where he and his wife had lived some three years previously and he has no knowledge of how the defendant came by that address. It is the defendant's case that the department has records indicating an address at 186 Terminus Street, Liverpool. Substantially that is the evidence, gentlemen and is it capable and this is a matter that I have to decide, whether in my opinion the evidence is capable of satisfying a jury beyond reasonable that the defendant has committed the offence set out in section 319 of the Crimes Act.

On the basis of that test, it is my opinion that the evidence is capable of satisfying a jury beyond reasonable doubt that the defendant did an act, that is an act of service of a summons or an information. However, I do not regard the evidence as sufficient because I cannot see the evidence to support a conclusion by the jury, that is satisfying a jury beyond a reasonable doubt that the defendant did it, intending to pervert the course of justice and it is for that reason that I come to the conclusion that the defendant is to be discharged.
…………

BENCH: I have just noticed, so I will put it to one side, to continue my remarks in fairness to the informant who may very well go elsewhere, you are entitled to go elsewhere in terms of appeal process. The informant placed before me during the course of argument and discussion, a decision of the full court of the Supreme Court of Tasmania which I note and quoting from Wentworth v Rogers, the very well known decision of the Court of Criminal or the Court of Appeal in New South Wales 1984 2NSWLR 422, the following passage was referred to and this is the test as I understand it, "The powers of the magistrate at the close of evidence for the prosecution are not open to doubt, section 40(1)(ii). He is required to rule upon the sufficiency of the evidence. Accordingly, he must disregard any evidence favouring the defendant and have regard only to that evidence which favours the Prosecution, R v Rothprothery is referred to.

The judgment continues and the paragraph quoted from Justices Hurtley and Glass continues, "It is not his function to weigh the evidence or assess its acceptability whether in relation to the character of the evidence itself or the credibility of the witnesses who gave it. He is required to assume that it is accepted without reservation by a jury". And Jayasena v The Queen 1970 (AC618) at 624 is referred to. Continuing the quotation, "Upon that assumption, he asked himself whether a jury accepting all the prosecution evidence, could lawfully convict the defendant and the man O'Sullivan is referred to, ie could, acting reasonably, it be satisfied of the defendant's guilt beyond reasonable doubt. Another formulation of the question is whether the evidence adduced by' the prosecution is capable of producing satisfaction beyond reasonable doubt in the minds of a reasonable jury. That quite clearly is the test. If I am wrong, then of course my conclusion is not necessarily the end of the matter. What it seems to me is the case here is that the informant has grounds upon which he can be aggrieved and he has grounds upon which he can hold suspicion that a course of conduct was embarked upon by the three defendants in the committal proceedings before me to pervert the course of justice. Suspicion is not proof and there is evidence of an act which was an act of sending to an address which was not current, it was a defunct address of the defendant's, a summons, capable of perverting the course of justice but I am not able myself to conclude that the inference which a jury is entitled to draw from the fact of sending the summons to the incorrect that that fact is itself capable of satisfying a jury beyond a reasonable doubt that the defendant had the requisite intention to pervert the course of justice. It is for those additional reasons by way of attempting to satisfy the informant that I had clearly in mind the passage that he previously referred me to and I wanted to place it on record that it is the test as I understand. What appears to be missing in this is an element or evidence to support the element of intent. It is for that reason that I came to the conclusion that I have reached.”

18 The simple fact of the matter is that there was no evidence tendered before the Magistrate which would in any way support the drawing of any conclusion about the necessary intention to pervert the course of justice. In the circumstances it seems to me that the Magistrate has carefully, having regard to the correct principles, dealt with the admissibility of the evidence before him as he was required to do under s 48F of the Justices Act and has come to a conclusion in accordance with that evidence. Any other conclusion would be quite inappropriate. 19 It will be noted that one of the grounds advanced under e was bias said to be established, inter alia, by the Magistrate’s refusal to accept the established law applicable on a committal hearing. As I have found he applied the law correctly and it seems to me that it is the plaintiff who has persisted both before the Magistrate and this Court in suggesting that the Magistrate is bound to accept all evidence placed before the Magistrate whether admissible or not as having to be accepted for the purpose of the relevant test of whether the defendants should be committed for trial. 20 Another aspect of the question of bias is the matter relating to the refusal to issue a warrant for the apprehension of Mr Culbert. Under s 41(1)(B)(b) of the Justices Act a committal proceeding may proceed in the absence of the defendant if a Justice is satisfied that during his absence the defendant will be represented during the taking of that evidence by counsel or an attorney. His Worship clearly decided that as there was proper representation the proceedings could be continue. He said at page 7 of the first day:_

“As I understand the requirements and as I understand the nature of the prosecution, I am of the view that it may indeed be to the advantage of the Prosecution if certain representations or evidence is placed before me. That remains uncontested because of the absence of Mr Culbert and the provision is designed to ensure that prosecutions can continue, and that is usually for the advantage of the Prosecution. It is designed to ensure that prosecutions can continue in the absence of a defendant but it is also designed to protect the interests of a defendant and, quite clearly, the restrictions placed upon the court are that a defendant will not be excused unless the Justice is satisfied that during his absence the defendant will be represented.

I am satisfied that I am entitled to exercise my discretion in favour of allowing for the continuation of the prosecution in the absence of Mr Culbert.

There was an application for a warrant to be issued for his arrest and it would result in extradition proceedings from Ireland. I will not rule on that at this stage because I regard it as a premature application. It would be one that could be possibly entertained at the conclusion of this inquiry as to whether or not there is a prima facie case that should be committed for trial.”

21 The committal proceedings against Mr Culbert have in fact been deferred pending the outcome of these proceedings at the request of the plaintiff. It is seems that as yet there has been no decision declining to issue a warrant for the arrest and, accordingly, there is nothing improper in the actions taken by the Magistrate. I can see nothing in the areas of alleged bias which were raised at the hearing which would lead to bias nor do I see anything inappropriate in His Worship’s decision on the application that he disqualify himself. 22 It seems clear to me that the third defendant has conducted the enquiry appropriately and has accorded the plaintiff due procedural fairness. There is no want of or excess of jurisdiction and no error of law that I can ascertain. On this basis it would seem to me that these proceedings should be dismissed. 23 There are also sound discretionary reasons why the court should decline to exercise its discretion to order certiorari and that is because the Attorney General or the Director of Public Prosecutions may always file an indictment. See Spautz v Williams (1983) 2 NSWLR 506 at 516, Wentworth v Rogers (1983) 3 NSWLR 161 at 170-1, Waterhouse v Gilmore (1988) 12 NSWLR 270 at 278. If the plaintiff assembles sufficient admissible evidence he can always put that to the appropriate authority and request re-consideration. I emphasise that the material would have to be in properly admissible form before it could be considered. The nature of the material put before the Magistrate in this case largely was not admissible and the Court could not be satisfied, having regard to the way the plaintiff has conducted his case before the Magistrate and this Court, that if the decision were quashed that any different approach would be adopted. In these circumstances any future consideration should be by the Attorney General or Director of Public Prosecutions. 24 I order that the Summons be dismissed and the plaintiff pay the defendants’ costs.

Last Modified: 09/26/2000