Marinovich & Anor v Nairn

[1988] HCATrans 249

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne	No M33 of 1988
In the matter of -

An application for a writ of prohibition against WILLIAM

IAN NAIRN, Deputy Director of

Public Prosecutions of the

Commonwealth (Perth)

Respondent

Ex parte -

IVAN JACK l1ARINOVICH and

ANTHONY SERGIO RICCIARDELLO

Applicants

Office of the Registry

Melbourne No M37 of 1988

B e t w e e n -

IVAN JACK l1ARINOVICH and

ANTHONY SERGIO RICCIARDELLO

Applicants

and

Marinovich

MASON CJ

BRENNAN J

GAUDRON J

WILLIAM IAN NAIRN (who is sued in

his capacity as Deputy Director of
Public Prosecutions of the

Commonwealth of Australia (Perth))

Respondent

Application for special leave

to appeal

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TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 OCTOBER 1988, AT 11.30 AM

Copyright in the High Court of Australia

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MR_A,R• CASTAN, QC: If the Court pleases, I appear with my

learned friend, MR J.G. SANTAMARIA, for the applicant
Marinovich in this matter and in the next matter .

(instructed by Pryles & Defteros)

MR R. RICHTER, QC: If the Court pleases, I appear with my

. learned friend, MS L. LEIDER, for the applicant,

---Mr Ricciardello in this matter. (instructed by

Pryles & Defteros)

MR E.M. HEEHAN, QC:  If the Court pleases, I appear with my

fearned friend, MR J.A. SCHOLZ, for the respondent

in both matters. (instructed by the Director of

Public Prosecutions)

MASON CJ:  Yes, and what about the second matter? Do you

appear in i:the second matter as well, Mr Heehan.

MR HEEHAN:  Yes, Your Honour, sorry, in the prohibition matter

and in the special leave matter.

MASON CJ: Yes. Yes, Mr Castan.

MR CASTAN:  If the Court pleases, these matters arise out of

a motion which was dealt with in the Supreme Court

of Western Australian pursuant to section 614. of

the CRIMINAL CODE which provides a specific mechanism

referred to by His Honour Mr Justice Seaman as a

dermurrer for the purpose of determining issues

affecting the validity of indictments. What occurred

in brief was that an ex officio indictment was

presented for offences under State law by the
Federal Deputy Director of Public Prosecutions. That
occurred after the Federal Director of Public

Prosecutions had filed a nolle prosequi in respect

of earlier charges under federal law which had been

the subject of a committal hearing.

So, in time sequence, there was a committal

hearing in respect of federal charges, charged by

the federal authorities. There was a nolle prosequi

with respect to those charges after the committal
concluded.	The Federal Deputy Director of Public

Prosecutions then purported to present.with respect

to offences under State law. His Honour Mr Justice Seaman

held on the demurrer motion to the indictment that

the Federal Deputy Director of Public Prosecutions did

have power to present such an ex officio State

of course, the whole proceedings are a nullity

criminal indictment. If the Deputy Director of

ana there is no ex officio indictment.

':.What is raised, in our respectful submission, is

a question of, initially, the constitutional

validity of the federal Act constituting the office

of the Director of Public Prosecutions and his staff,

and interwoven with that, a difficult question as to

the construction of the CRIMINAL CODE of Western

Australia, which distinguishes between those officers

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who may be authorized by the Attorney-General to

present ex officio indictments as against persons

who may present indictments consequential on

connnittal proceedings.

Could I take Your Honours briefly to two of the sections of the DIRECTOR OF PUBLIC PROSECUTIONS

ACT 1983?

BRENNAN J:  How does this arise? How does the validity of

the federal law arise?

MR CASTAN:  What occurs, Your Honour, is that there is a

provision in the CRIMINAL CODE of Western Australia
which provides specifically for challenges to the

validity or efficacy of indictments.

BRENNAN J: Yes.

MR CASTAN:  That is set out at - - -

BRENNAN J: But is there any question, other than the question,

"Is Mr Nairn authorized	under the fourth paragraph
of 579?"

MR CASTAN:  Yes, there certainly is, Your Honour, there is a

further question, a fundamental question going to his

functions as constituted under the federal Act.

BRENNAN J:	How does that arise?
MR CASTAN:	Because if he is not properly empowered - if the

federal Parliament does not have the power to confer

upon him the capacity ta act with respect to State

indictments. then the indictment under State law must

necessarily be bad. Or, putting it another way - - -

BRENNAN J:  Why? If the federal Parliament has no power to

effect the operation of a State law, why does not the

State law operate according to its terms1

MR CASTAN:  Of course, and there is no difficulty with State

law in its own terms empowering a person who might

also have a function as a federal officer, and that

matter has been canvassed in cases involving tribunals

of various kinds, but there are passages specifically

in a judgment of Your Honour Mr Justice Brennan,

dealing with the Coal Industry Tribunal which make

it clear that the federal law cannnot, in authorizing

a federal officer to take on a State function in

addition to his federal function, authorize it beyond

the scope of those matters which are conducive to

the better exercise of federal power. That is to say, having charged the federal officer - in this case, the Director of Public Prosecutions -.with the federal

function, there is a question first of all of section 109
inconsistency if State law purports to empower the
same person to carry out State functions, and then, if
the federal law, in its terms, permits or provides

for such State vesting, there is then a question of

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whether that federal law is confined within the

boundaries of federal power.

BRENNAN J: We are speaking ,here about the authority to

present an indictment, are we not?

MR CASTAN-:	Yes, Your Honour.
BRENNAN J:	And that authority, if it exists at all, exists

under the State Act.

MR CASTAN: 

The authority exists under the State Act, but

the capacity of this particular officer to act
pursuant to that authority, to take on that authority,

is dependent upon whether or not he is so permitted

or authorized, or, alternatively, whether there is

an inconsistency and the State Act must be read down,

if, in fact, the State Act is inconsistent with the
authority conferred by the federal Act, and there

would be some such cases.

Could I take Your Honours to a very short passage

in REG V DUNCAN EX PARTE AUSTRALIAN IRON AND STEEL?

I am not sure if Your Honours already have copies of that?

MASON CJ:	Yes, we do.
MR CASTAN:	That is in (1983) 158 CLR 535, and at 579

YourHawur Mr Justice Brennan dealt with what we

would respectfully submit is, in effect, this

question. That dealt with a tribunal which was,

of course, exercising and was vested with both

federal and State powers in the conciliation and
arbitration field and, at page 579, the first full

paragraph, it is put:

AIS submits that it is beyond the powers of

the Cotmnonwealth Parliament to authorize the

mkaing of an arrangement for the constitution

of a tribunal and for the appointment of

a person to constitute a tribunal that is to

have and to exercise both federal and State
powers. The objection is not so much to the

mode of creation and appointment of the Tribunal

but rather to the hybrid nature which the

submission attributes to the Tribunal. It is

but that is not what the Cotmnonwealth Act does.

of course beyond the power of the Cotmnonwealth

The Act approves the Tribunal's having and

exercising State powers but it does not purport

to vest them. It vests only federal powers (s.32(2)).

If the Act had merely constituted or authorized the constitution of a tribunal and had vested

federal powers of conciliation and arbitration

in it without reference to State powers, an

attempt by a State Act to vest similar State

powers in the same tribunal would fail - not

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because of a constitutional incapacity in a

Connnonwealth tribunal to have and to exercise

State power, but because the Connnonwealth Act

would be construed as requiring the tribunal to

have and to exercise only such powers as the

Connnonwealth Parliament had chosen to vest in it.

And, in parenthesis, if I can just stop, that answers one of the matters that, I think, Your Honour just

put to me:

If the Connnonwealth Act were construed as not permitting the Tribunal to be a repository of

State power, it would prevail over the State Act
by reason of the inconsistency between them.

But the Connnonwealth Act permits the State Act

to repose State powers in the Tribunal.	The
Connnonwealth Parliament, having power to

create the Tribunal and vest federal powers

bound to refuse permission for the reposing of similar State powers in the Tribunal.	of conciliation and arbitration in it, is not interstate industrial disputes in the coal industry may be better achieved by permitting the Tribunal to have and to exercise similar
powers conferred upon it by a State Act.
Section 32(1) permits the Tribunal to have and to exercise State powers to the extent specified
in that part of the Act; it does no more.
Section 32(2) is the only provision which vests
powers in the Tribunal and it does not purport
to vest State powers.

And then the critical portion, Your Honours:

and to exercise State powers where the vesting

It is within the competence of the Connnonwealth

and exercise of State -

and the word "powers" I think, has been dropped from

tha text - powers -

is conducive to or consistent with the achievement

of the object which the vesting and exercise of

federal powers is intended to achieve. It is

no argument against the validity or efficacy

of co-operative legislation that its object

could not be achieved or could not be achieved

so fully by the Connnonwealth alone.

Now, the critical qualification that is expressed in

that passage and that we would respectfully submit

is raised here is that it is within the competence

of the Connnonwealth to permit the tribunal - in this

case, the relevant officer constituted under the

1983 legislation:

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to have and to exercise State powers where

the vesting and exercise of State -

powers -

is conducive to or consistent with the

achievement of the object which the vesting

and exercise of federal powers is intended

to achieve.

Now, what has occurred here is that in the DIRECTOR

OF PUBLIC PROSECUTIONS ACT there is a purported

empowering of the Director of Public Prosecutions and

his staff to carry out, to have vested in them

State powers, and they are then given the function of

carrying out those State powers.	The difficulty is
that the relevant sections are at large.	They are

not expressed in a way that expresses it as hPing

for the purpose of achievi.ne the objects of Conm:mwealth criminal

law with the limitations that are well-established with respect to that. They are expressed in a way

which, if given effect in their terms would, in

effect, enable Commonwealth officers constituted

under a Commonwealth legislation to act at large

in respect of State criminal law.

Could I take Your Honours briefly to the two

sections of the Act that illustrate that that is so

and that they are expressed,as we would respectfully

submit, too widely. The DIRECTOR OF PUBLIC

PROSECUTIONS ACT is Act 'No 113 of 1983, and

could I take Your Honours directly to section 6(1)

where there~:is .set out functions of the Director, and

they are set out as items (a) to (n) respectively,

and Your Honours will see that (a) is:

to institute prosecutions on indictment for indictable offences against the laws· of the

Commonweath:

and then (b) :

to carry on prosecutions of the kind referred to -

and so it goes on through to item (m), and in each

case there is a distinct limitation or reference to

the laws of the Commonwealth or matters arising in

respect of the Commonwealth authorities of the

Commonwealth; (m) is expressed in this way:

where the Director, with the consent of the

Attorney-General, holds an appointment to

prosecute offences against the laws of the

State to institute and carry on, in accordance

with the terms of the appointment, prosecutions

for such offences.

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Section 17 of the Act is in identical words to

section 6(l)(m) dealing with staff. Now, it is

our respectful submission that the provision for

the consent of the Attorney-General is not a

sufficient constitutional limitation to confine

this purported empowering of a Commonwealth officer

---as constituted under this Act to carry out State

functions at large. In effect, it might be said,

well, it has to be with the consent of the

Attorney-General, but obviously enough, the

consent of the Attorney-General only to deal in

matters confined to Commonwealth law, if there be

such a consent,or otherwise delimiting the cases

in which the Commonwealth Director of Public

Prosecitions might proceed in respect of State matters,

cannot constitute the proper constitutional

limitation.

The relevant words that should be there, perhaps

on one view should be read ...... It may be so

contended that it should be read down but we would

respectfully submit that the words missin$ are,

"for the purposes of the better administration of Corm:onwealth

criminal . law," or, "to assist in the prosecution

of mixed Commonwealth and State offences." There

would be a variety of situations where no doubt it

would ·~ be perfectly in accordance with the

furtherance of Commonwealth criminal law to have

State offences prosecuted. The difficulty with

6(1)(m) and 17 is they do not contain within themselves

that limitation and in their very terms once a person

is appointed in the relevant way he is, on the face

of it, at large to prosecute generally with respect to burglaries, rapes, anything that goes on in the State.

Now, that is an intrusion, we would respectfully

law that is beyond the power of. the

submit, or potential intrusion, exercised by the criminal

Commonwealth and it is in that way that the question

BRENNAN J: If it is beyond the power, then the power conferred

by paragraph (m) fails, and that is a federal power.

What is there which makes the State power under 479

fail?

MR CASTAN:	Then we would respectfully - adopting the words in the relevant passage which we just read . : from the
AUSTRALIAN IRON AND STEEL case - we would respectfully
submit that if there is an Act which empowers an
officer to carry out  Commonwealth functions, and
there is no empowering to carry out the State functions as well, for the appropriate conducive purposes, then in our respectful submission, under section 109
any such State Act should be read down or is
inconsistent or - - -

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GAUDRON J: That would be on the basis of an intention

discerned from the Connnonwealth legislation.

MR CASTAN:  Yes, Your Honour.

GAUDRON J: Well, it is very difficult to discern an

intention to cover the field to the exclusion of

-state law in the face of an express intention which,

albeit that it fails to achieve its object, is

none the less expressed in the legislation.

MR CASTAN:  But in our respectful submission, if it fails,

one cannot read the Act as though it contemplates

or provides for the conferring of State power where

it is - - -

GAUDRON J: No, no. That is really not the point, Mr Castan,

is it? The point is, if there were any inconsistency
it could only be on the basis of an intention to be
discerned from the legislation to cover the field

to the exclusion of any power or authority which

might be conferred by State law on the DPP.

MR CASTAN: It may go a littler further than that, Your Honour,

because there is a question raised and it may have

application in other fields as well and, again, to

pick up the relevant passage but applying it more

generally, does the vesting of functions in tribunals,

officers carrying out the Connnonwealth functions
without reference to State functions, or in a

reference to State functions which fails, which

simply does not operate; can that be said then to

permit or contemplate the conferring of some State

function?

In our respectful submission, the only thing

contemplated here is an unconstitutional form of

vesting. That is to say, the capacity of a

Connnonwealth officer constituted under this Act to

carry out functions beyond those which are

constitutionally permissible. In our respectful

submission, it would not then be possible to turn	it around and say, well, if you do not have the
then have, in any event, an unlimited grant cf
power. The very fact that one would-. it does not follow - - -

unconstitutionally excessive grant of power you

GAUDRON J:  But if you go back to what was said by Justice Brennan,

there is no grant of power, there is no grant of State

power to the DPP by these two sections.

MR CASTAN: Quite, quite.

GAUDRON J: The sections serve simply, do they not, to say,

within the limits of those sections, that is, with the consent of the Attorney-General, you will not be taken to be in breach of this Act if you do these

further functions.

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MR CASTAN:  Or rather, with respect, Your Honour, "these are your functions."

GAUDRON J: Yes.

MR CASTAN:  The Commonwealth is pronouncing on what are the

-· --functions. It is not simply a matter of saying,

if the Commonwealth seeks to say, "and you can take

on certain further functions that conduce to

Commonwealth power," the Commonwealth, of course,

can do so as was suggested in the case of some of

the tribunals as occurs in the conciliation and

arbitration area, certainly. But that is not this

kind of case. Here we have an Act which, in our

respectful submission, purports to do that which

the Commonwealth cannot do and, in our respectful

submission, one cannot, assuming one was to read

out the section which goes beyond power, then say,

in any event, the person who is given these functions
can have all the functions that were the ones that the

Parliament could not have permitted. That would

fly in the face, we respectfully submit, of the very

conclusion, the very reasoning, which led to the

view, if it ultimately be upheld, that the section

is too wide because it does not confine the function

to the better effectuating of Cornmonwealth functions.

BRENNAN J: Another way of looking at paragraph (m), I suppose,

is to say that it does not purport to confer or

create a function under Cornmonwealth law at all.

What it does is to prescribe the limitations upon

the acceptance by an officer or by the DPP of powers

under State law, the condition being that there is

the consent of the Attorney-General. If that

consent is not obtained, then the purported conferring

of power will be void; if it is obtained, then it

takes effect according to its tenor.

MR CASTAN:  Yes, but it purports to give that permission, we WDU.ld

respectfully submit, in an area that is beyond the scope of Cornmonwealth power. If the Commmonwealth

can only do that, it can only effectuate or give

that permission if it is serving the purpose of

Cornmonwealth laws. It cannot do it at large. If it

could do it at large it could, in effect, constitute

federalcriminal prosecutors to take over State laws

once - - -

GAUDRON J: Well, that is hardly so. I mean, it is still left

to the State law to decide whether or not to confer

authority on the terms of this Act.

MR CASTAN:  Yes, it is, but once having that authority,·

on that view, it would be at large.	The Cornmonwealth's
officer constituted and set up - - -

GAUDRON J: Well, that is a matter for the States.

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MR CASTAN: Well, in our respectful submission, the Commonwealth

cannot be party to that exercise unless they are

doing it for the purpose of Commonwealth purposes,

ultimately. That may include prosecutions of State

matters, of course, because there would be frequently

cases where that does effectuate the Commonwealth

--purposes but the limitation is not there. We would

respectfully submit that there must be a limitation.

It cannot be that the Commonwealth can constitute

officers, set up an entire office for the purpose of

prosecution of criminal matters and then, without

any limitation geared to or structured by reference

to the effecting of Commonwealth purposes, permit or
include as one of the functions the fact that even

accepting that the State does consent to it, as

Your Honour as put to me. The question is not whether

the State consents to it; the question is whether it

is within Commonwealth power to so constitute an

office, in that way, umlimited by the sort of
criteria that we have referred to in the authorities.

Now, that is the point that emerges in addition to the one that I think Your Honour Justice Brennan

raised with me concerning the other difficult

matter and it raises particularly complex

questions which illustrate the problem of this sort

of structure, the problem in sections such as

578 and 579 of the s·tate CRIMINAL CODE of Western

Australia, which makes a distinction between those

who are authorized to presentr·\ ex officio indictments

and those who are authorized to merely present

indictments consequential on a committal.

Now, the wording used in this section is "holds

an appointment to prosecute offences." That

wording is in e:eneral terms. The State legislation, of

course, varies in each State and in Western Australia: the State

l.egislation makes this clear distinction between officers -

presumably because it is exercise of prerogative

officers authorized by the Attorney-General, as

distinct from, in the case of ex officio indictments,

as against persons authorized to present indictments.

Now, there is a clear distinction. In the case of

this particular instance, this officer, in terms of

the gazettal itself, and that appears specifically

at page 31 of the special leave book, Your Honours

will see that the appointment was made quite explicit.

It was made under section 578 of the CRIMINAL CODE.

Section 578 - it is ir. terms and expressed as:

UNDER section 578 ..... and section 52 of the

INTERPRETATION ACT 1984 His Excellency the

Governor ..... has appointed .....

(b) William ··=-Ian Nairr:i. the Deputy Director of

Public Prosecutions of the Commonwealth -

and Mr Muller -

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as persons authorized to sign and present

indictments in any court of criminal

jurisdiction.

Now, when we turn to section 578 which is to be

~-~ound at page 26 of the book, we see that clear

distinction made between 578, which deals with

indictments after a person has been charged and has

been committed for trial:

The indictment -

in the second paragraph

is to be signed and presented to the Court
by the Attorney General or some other person

appointed in that behalf by the Governor.

That is the function, clearly enough, under section 578,

that Mr Nairn was authorized to carry out by the

appointment. But, when we look to ex officio indictments

we find a separate set of provisions in section 579 and

a specific reference to" an officer'; that is in the

second paragraph of section 579 at page 26:

An officer appointed by the Governor to present indictments in any court of criminal jurisdiction

may present an indictable offence within the

jurisdiction of the Court, whether the accused

person has been commited for trial or not.

And the distinction between officer, or person duly appointed, is preserved in the next paragraph and

over on the following page dealing with an additional

indictments after committal. Now, the difficulty

about the appointment is that the appointment

section 6(1)(m) or 17, as applicable, provide for

an appointment to prosecute offences, but they do

not make that distinction between those who are

appointed as persons to proceed with indictments after

committal and those officers who are authorized to

exercise the prerogative power to present ex officio

indictments.

BRENNAN J:  Why do you say that paragraph 4 deals with

additional charges?

MR CASTAN:  That is the one on page 27, Your Honour?

BRENNAN J: Yes. The one on which the judge relied on page 27.

MR CASTAN:  Yes, Your Honour, because that refers to persons

who have been committed for trial and it starts off:

With regard to any person who has been

committed for trial in respect of an indictable
offence alleged to have been committed by him,

the Attorney General and, if otherwise acting within

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the scope of their authority, all officers and

persons authorized to sign ..... may present

indictments against such person for any

indictable offences which the Attorney General
or such officers or persons shall consider to be
prima facie disclosed by the evidence,

irrespective of whether the said offences are

mentioned in the commitment for trial or not.

So that is dealing with the person who has been committed for trial and then deals with those matters

which have been mentioned.

GAUDRON J: Well, is that not the position here?

MR CASTAN:  No, it is not. This was an ex officio indictment,

consequentially - - -

GAUDRON J:  You keep saying "ex officid~ but plainly enough

it is not ex officio because Mr Nairn was not an

officer authorized to present such an indictment

under State law. He held no office under State law

which would support the issue of an ex officio
indictment. Is not the effect of paragraph 4 simply

to distinguish the situation in which indictments

may be presented other than ex officio. I mean, it

is a plain distinction; it is recognized, I should

have thought, in every State in all aspects of the

prosecution of indictable offences.

If there has been a committal proceeding, as a

matter of practice, then even though an offence that

has not been committed for trial is to the person

presenting the indictment disclosed by the evidence,

then that person may present an indictment for it,

without the necessity for an ex officio indictment

issued by virtue of the office held.

(Continued on page 14)

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MR CASTAN: Quite so, Your Honour, but in this case there

was a nolle prosequi filed and - - -

GAUDRON J:  What difference does that make?

MR CASTAN: . The proceedings were at an end and

GAUDRON J:  But you still had your committal for trial.

I mean, what you are suggesting on that basis,

surely, is that if instead of entering a nolle

the Deputy Director of Public Prosecutions had

presented an indictment which disclosed all the offences and then said, "And I elect to present

no evidence on the first three.", that he would

be within the fourth paragraph.

MR CASTAN:· Those cases are relatively ·easier, if I may

say so, with respect, Your Honour. Could I take Your Honours to page 28 where the nolle prosequi

provision is set out. Section 581 sets out - - -

GAUDRON J:  Yes, well, there may be a real question whether

a nolle has been entered, I suppose,	which
I imagine you y;ou·1d not wish to raise.

MR CASTAN: It seems clear - we would respectfully submit

that it has. Your Honour will see, at page 28,

that section 581 provides for nolle prosequi:

"The Attorney General may inform any Court,

by writing under his hand, that the Crown

will not further proceed upon any

indictment then pending in the Court.

An officer appointed by the Governor to

present indictments in any Court of criminal

jurisdiction may inform that Court, by

writing under his hand, that the C~own will

not further proceed upon any indictment

then pending in that Court.

When such information is given to the Court

the accused person is to be discharged from

any further proceedings upon that

indictment."

So there is provision of discharge and the

proceedings are entirely at an end. And the

complications are compounded by the terms of

the new indictment which we respectfully submit

purports to be ex officio because at page 22

Mr Nairn described himself as a person:

duly appointed to prosecute for our Lady

the Queen -

but, of course, that is the wording that he has

picked up from section 6(l)(m)cf the Commonwealth

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legislation which talks about where he holds

an appointment to prosecute offences against

the laws of the State. It does not accord with

the terms of his appointment under section 578

which I took Your Honours to at page 31 which

authorizes him:

to sign and present indictments

but tells us nothing about that further step

of carrying on indictments or prosecuting.

That distinction, between instituting and

carrying on, is stressed repeatedly in

section 6 of the Commonwealth Act. 6(l)(a)

deals with instituting prosecutions. 6(l)(b) deals with carrying on prosecutions. 6(l)(c)

deals with instituting different kinds of

proceedings. (d) deals with instituting. (e)

deals with carrying on. (f) is assisting coroners.

(g), in (i), is instituting proceedings and (ii) is carrying on and (iii) is co-ordinating. The

distinction is repeatedly made .. Mr Nairn's

function is in explicit terms expressed to be:

a person authorized to sign and present

indictments -

at page 31 and yet, at page 22, he purports to

described himself as·a person:·

duly appointed ~o .prosecute -

a function, we would respectfully submit, he clearly enough does not have with respect to

that kind of indictment.

BRENNAN J: ls there a form of indictment prescribed by

the Criminal Practice Rules? ·

MR CASTAN:. Woul~ Your Honour excuse me a moment.

BRENNAN J: Perhaps Mr Richter could have a look at it

while you are dealing with arraignment.

MR CASTAN:  I am not sure. Mr Scholz; and Mr Richter would

no doubt have ·an	answer more readily to hand,
Your Honour ..

BRENNAN J:  The words there seem, to my memory, to ring

a bell as to the form in which it was always couched

but I·may be wrong.

MR CASTAN:	That is the words, "duly appointed to prosecute"?
BRENNAN J:	Yes.

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MR CASTAN:  Your Honour, I have just·been handed a

schedule of forms which is expressed in the terms -

under the State Code which is expressed as:

duly appointed to prosecute for our

1n that case -

Lord the King.

BRENNAN J:  Yes:

our Sovereign Lord the King.

MR CASTAN:	So they are words in accordance with the form. The difficulty, of course, is that the appointment
which Mr Nairn had was a limited one and one that does not meet the second of the classifications
that the Commonwealth's empowering Act contemplates. To put it another way, in 6(1)(m), one sees the
words:

Where the director holds an appointment to prosecute offences against the laws

of a State, to institute and carry on in

accordance with the terms of the appointment

prosecutions for such offences.

So the distinction is stressed in the Commonwealth

legislation. It is to:

institute and carry on in accordance with

the terms of the appointment.

Tpe terms of the appointment are, clearly enough,

as was pointed out at page 31:

to sign and present indictments -

That is under section 578 and in turn does not

include the -

GAUDRON J:  Where does the authority to carry on come from

under the CRIMINAL CODE? I do not imagine that

there is no prosecutor in court after the

indictment is presented.

MR CASTAN:  No, '{our Honour, one. would imagine not. I would

have to obtain ass 1 s Lance with respect to that,

Your Honour. These sections that are readily available to us deal only with the question of

the signing and presenting. They do not deal

with the process of prosecution and I doubt there

are provisions dealing with it.

GAUDRON J: There are, in the Commonwealth Act, clearly

enough because what that Act is dealing with

is a variety of offences: summary offences,

MlT8/3/ND	16	14/10/88
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indictable offences, committal proceedings,

but, in general, when you are dealing only with

indictable offences, the authority is inherent

with the power to present.

MR CASTAN:  The difficulty about it in marrying State law

with Commonwealth law is that the Commonwealth

law has specifically and in terms drawn the

distinction.

GAUDRON J:  Yes, but because it is dealing with a variety

of different methods of prosecuting. The State

law is dealing only with one process of prosecuting,

the process of prosecuting on indictment.

MR CASTAN:  Yes. With respect, Your Honour, that would

not account for the distinction between (a) and

(b) in 6(1) which deals with instituting prosecutions

on indictment and then carrying on prosecutions

of that kind. ·

GAUDRON J: Well, it would,because this was in a situation

in which a number of such proceedings may well

have been instituted and there was being brought

into the field a new office that would take over

that which had earlier been instituted.

MR CASTAN:  And we emphasize the distinction between instituting

and the carrying on.

MASON CJ:  But what does it matter if the State officer

is authorized to carry on,assuming that presentment

covers carrying on? Why do not the words of

the Commonwealth Act cover it?

MR CASTAN: ~ They do if the State Act encompasses it.

MASON CJ:  Why does not it encompass it?

MR CASTAN:  Because, clearly enough, in section 579, in our respectful submission, the State Act is

dealing with the category of ex officio

indictments and provides that officers are to
present those. That appears in the second
paragraph, as we pointed out, and not persons.

The argument to the contrary, from the fourth paragraph, which Justice Brennan has put to me,

would, with respect, leave the words in the second
paragraph of 579 with no meanin~ whatsoever.

They would leave it entirely otiose. There would be no need to provide for ex officio indictment

in non-committal situations.

GAUDRON J:  Yes, there would. You would still have the

case where there had been no committal proceedings
at all or you had had committal proceedings but

nobody was of the view that the evidence at the

MlT8/4/ND	17	14/10/88
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committal proceedings prima facie disclosed the
offence now to be charged. There has been new
evidence, for example, since the committal

proceedings and it is decided to proceed ex officio

on the - your fairly standard situation: discharge

of committal proceedings, new evidence becomes

available.

MR CASTAN:  Yes, and that is a case where

GAUDRON J: That is a case for ex officio under the second

paragraph.

MR CASTAN: · Yes, well, we would respectfully submit that

that covers the case of those kinds of situations.

In ot~er words, that is the case where the officer

exercises -

GAUDRON J:  Yes, that is the work that paragraph 2 does.

MR CASTAN: In our respectful submission it· cannot be the

case then that paragraph 4 enables, in a case

where there has been a nolle prosequi so that

the committal and the charges presented under
that committal are totally at an end, that one

can, so to speak, go back and say, "Well, anybody -

we won't call what is now presented ex officio at a 11. 11

BRENNAN J: Where do you get that effect of a nolle? A

nolle is a nolle with respect to a charge in

an indictment.

MR CASTAN:· Yes, Your Honour.

BRENNAN J:  You say so that the proceedings of the committal

are at an end. Why are they not still fulfilling

the condition 1 precedent to the operati9n of the

fourth paragraph?

MR CASTAN:. Because what is contemplated, we would

respectfully submit, contemplated in the fourth

paragraph, is a commitment for trial.

BRENNAN J:  But if there is a commitment for trial, let

us say, on a charge of stealing and there is

an indictment for stealing, and then it appears

that the indictment really should be for one

of receiving, the procedure is to put a nolle

on the stealing and put the charge of receiving.

Mind you, you would probably put them both in

but it really does not matter.

MR CASTAN:  In our respectful submission, the fourth

paragraph is dealing with what we would call

the added on cases.

MlT8/5/ND	18	14/10/88
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BRENNAN J: I know that is what you say but I cannot see

any textual support for it.

MR CASTAN:  That is the way in which the argument is put

on the construction of the statement.and we say

that the difficulties in relation to the different

classes of persons that are presented by that,

the distinction between officers and persons,

illustrates the problem that is posed by the

question of power that we earlier addressed. In other words, we say there are two m8tters

emerging in this case, that is to say the qµestion of
power as outlined to Your Honours with respect

to the absence of any limitation in 6(1)(m) and

17 and the construction matter which I have outlined.

Those are the substance of the two matters which

lie behind the - - -

MASON CJ: What are you asking us to do with the second

matter, the prohibition?

MR CASTAN: If the view was taken that the matter was

appropriate for special leave it would not be

necessary to proceed to that. If what· is said

is that for some reason there is elements of

prematurity or other such issues which go to

prevent the Court dealing with matters which

otherwise it might have seen as appropriate for

special leave, then we would seek to address the questions as to the use of the procedure by way of prohibition because, in our respectful

submission, this matter, if it is of the kind

deserving special leave, should not be rejected

by reason of any, what we might call, procedural

deficiencies arising from the - - -

MASON CJ:  I take it that you have perceived that there

are procedural problems arising in connection

with - - -

MR CASTAN:  We are told that there are arguments

to be presented by our learned friends.

MASON CJ:  So that you are now making an application for

special leave for more abundant caution.

MR CASTAN:	Yes, Your Honour.
MASON CJ:	What is we were to take the view on your special
leave application that Mr Justice Seaman's decision
is correct or not attended with sufficient doubt to justify special leave to appeal? What do
you want to do with the prohibition application
then?

MR CASTAN: If the position - if I could add to that,

and Your Honours were of the view that the other

M1T8/6/ND	19	14/10/88
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matter which ·we have raised, that is to say the

question of excessive constitutional breadth

was also - - -

MASON CJ: That is involved.in your special leave application.

MR CAS'f-AN:, Yes. I take Your Honour to be saying that·

Your Honour is against us on both - - -

MASON CJ: Hypothetically, I am covering points that you

have raised.

MR CASTAN:  Then there would be no need to go to - there

is nothing additional in terms of substance that

MASON CJ:  So that the result would be the motion for

prohibition would be dismissed?

MR CASTAN:  I probably overstated the position. If

Your Honours - because there is some slide between

the questions of the procedural deficiencies

and the substantive aspects, if Your Honours took the view that Your Honours were against

us on the special leave substantive aspects of the matter, then we would seek to contend that

the prohibition, an application for order nisi

should nevertheless be granted because the matter

remains an arguable matter which should be dealt

with by the Court.

In other words, the test for the granting

of an order nisi is a somewhat lesser test, we would conceive, than that which is required for

special leave.

MASON CJ: It may be that if, in fact, the Court is of

opinion that an application for special leave to appeal should be refused on the ground the
decision below is right, I cannot see that there

is a residuum of arguability left.that would

justify prohibition.

MR CASTAN:  That would dispose of one aspect of it but

the matter of excessive constitutional breadth

was not dealt with by His Honour Mr Justice Seaman

so it would not be possible for Your Honours

to, in effect, take the view that he was right

because he has not dealt with it. If Your Honours

took the view that it was not a matter for special
leave we would nevertheless say it is raised and

is a matter which should be the subject of an

order nisi.

BRENNAN J: Under 75(v) of the CONSTITUTION?

MR CASTAN:  Yes, Your Honour, under section 75(v) and we

would respectfully submit that grounding it on -

MlT8/7/ND	20	14/10/88
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section 75(v) was grounding jurisdiction, we

would respectfully submit that it then raises

the question of the applicability of prohibition

with respect to officers carrying out functions

such as those of the Director of Public. Prosecutions
and in respect of that we say there are important

-- issues there also raised because, of course,

there are cases where magistrates signing search
warrants and magistrates signing summons have

been held amenable to prohibition and cases involving

police officers carrying out searches have been

held amenable to prohibition but other comments

suggesting that it is still necessary in the

modern law to find that element of - - -

GAUDRON J:  Have they been held amenable to prohibition

under 75(v) when exercising powers conferred

by State laws?

MR CASTAN·:  In at least one case.though it did not involve -

no, I am sorry, it was not a section 75(v) case.

GAUDRON J: That is the difficulty, is it not?

MR CASTAN:  That raises an additional complication but

even if exercising powers under State laws,

the person is still a Commonwealth officers and

is only able to carry out that function by reason

of section 6(1)(m), as we have contended.	We
acknowledge the existence of some area. of

uncertainty as to the exa~t scope of prohibition

and the kinds of officers - - -

MASON CJ:	But why should we worry about that, really, if we were of the view that you did not have
sufficient substance in the points that you want
to argue? We are then taking up a series of
interesting constitutional questions as to the
application of section 75(v) in a case that really
is not an appropriate vehicle.
MR CASTAN: If Your Honours were of the view that both

the issues raised were not matters of substance,

to use the most general term - - -

MASON CJ: Sufficient substance.

MR CASTAN:  - - - sufficient substance, or in effect formed

the view that adverse to those arguments on the

face of them as we have put them, then I think

we would have to concede that we are in perhaps

no better position applying for an order nisi

since we cannot persuade Your Honours that there is

the element of a prima facie case or such components

as the test requires.	Those are the submissions
for our client, Mr Marinovich,	My learned friend,
Mr Richter, appears separately.

MlT8/8/ND	21	14/10/88
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MASON CJ:	Yes.	Yes, Mr Richter.

MR RICHTER: If the Court pleases. With respect, we would

seek to adopt the propositions made by our learned
friend, Mr Castan, and we would seek to go to
the interpretation of the Code issue and

to argue that there is contextual support in

fact for the proposition that the distinction

between people appointed under 578 and officers

appointed to present ex officio indictment is

carried right through the legislation and is

preserved into the fourth paragraph of 579 and

is preserved contextually in fact by the use

of the words:

the Attorney General and, if otherwise acting

within the scope of their authority, all

officers and persons

preserves the-motion that officers have a certain
scope of authority as contradistinguished from

persons who have a certain scope of authority

and that whilst there may be some overlap there

are different scopes of authority for those people
who are officers appointed to file ex officio
indictments and persons who are authorized to

sign and present indictments.

That distinction in scope of functions

and powers and. authorities is, in fact, also

preserved in section 581 which is a section of

some interest because that section deals with

the issue of the filing of nolle prosequi.

His Honour Mr Justice Seaman, when delivering

judgment, appeared to have taken the view that

the entering of the nolle prosequi was done

pursuant to section 581 of the Code when, in

effect, it was not so done; it was, in fact,

done pursuant to the DIRECTOR OF PUBLIC PROSECUTIONS

ACT. It was a notification by the Deputy Director

of Public Prosecutions under section 9 of the

DIRECTION OF PUBLIC PROSECUTIONS ACT - 9(4) which

permits the Director to indicate in writing that

he declines to proceed with a prosecution.

The point of significance there is that

under the DIRECTOR OF PUBLIC PROSECUTIONS ACT,

when the Director declines to proceed in the

prosecution and may if the person is in custody

by warrant signed by the Director direct the

discharge of the p~rsori in custody and when

such a direction is given the person shall be

discharged accordingly.

That puts an end to the proceedings. There

is a similar power under the Code in section 581

for the notification of a decision not to further

MlT8/9/ND	22	14/10/88
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proceed but that power is strictly given to:

'

An.officer appointed by the Governor to

present indictments -

which echoes the words of section 579 in the

preservation of the distinction between officers

and persons. So that both the ex officio

indicting power and the power to enter a nolle prosequi are peculiarly potent, if one can use that expression,and there is good reason for

the allowing of the power to enter a nolle

prosequi, for example, to someone who is an .

officer in right of the State of Western
Australia rather than simply to a person who

is only authorized to sign and present an indictment

where the person has been committed for trial.

So that it is clear from the structure of

sections578, 579 and 581 that there is a distinction

that	is preserved and that it is preserved
in terms of powers and functions.	We would seek

to submit that what occurred here was in fact
the filing of an ex officio indictment inasmuch

as the applicants were never charged with these

particular offences. And it is not just a matter

of adding to something with which they were charged
on the basis that the evidence disclosed it but

as appears from the judgment of His Honour

Mr Justice Seaman, the fact is that the magistrate

was asked to commit on charges under the MISUSE

OF DRUGS ACT and declined to do so, notwithstanding

that there were no charges laid under that Act.

In other words, it was put that it was open

for him to commit on those and he declined to

do so. So that puts it in an analogous situation,

vis-a-vis the ex officio indict.ing power to

a situation where a person is charged, for example,

then discharged at committal and it is then sought

Under those circumstances there is no question	to present an indictment against that person.
but that the indictment would be construed as
an ex officio indictment and in order for someone
to present such an indictment there would ·have
to be a valid appointment under section 579 of
the Code ..

GAUDRON J:  Do you not put the cart before the horse to

say there is no doubt that in such circumstances

it would be construed as an ex officio indictment?

The question is:	by what authority an indictment
may be presented in those circumstances?	And

it may be by the authority of the office one

holds or it may be by authority of some other

statutory authorization or. some other

authorization, and the question in this case

MlT8/10/ND	23	14/10/88
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is not whether or not it is analogous to what

would be construed as ex officio but what

authority is there in such circumstances to

present an indictment?

MR RICHTER: It is the authority of the Attorney-General

--=~ or a person appointed to do that under the Code and that is the authority of the office.

GAUDRON J:	Not necessarily.
MR RICHTER:	In our respectful submission, as far as the

second paragraph of 5]9 is concerned, that, of course allows - or rather, the first paragraph

says:

The Attorney General may present an

indictment in any Court of criminal

jurisdiction against any person for any

indictable offence, whether the accused

person has been committed for trial or not -

And that is really declaratory of the Attorney's

power in so far as the ability to sign an

indictment by virtue of his office but also simply

says that where there is a committal he can also

sign that.

There is then, in the second paragraph,

an echoing of that;.a creation by the legislation

of a situation in which an officer of Western

Australia, who the Governor in Council says can do so, may also present an indictment whether

there has been a committal or not - whether the

person has been committed or not. So that puts -

such an appointment by the Governor puts an officer

in the same position as the Attorney-General in terms of the powers that the Attorney has

to sign an ex officio indictment.

In those premises, in our respectful submission,

where a person is discharged at committal on	a count, for example, the further presenting
of an indictment against such a person is the
presenting of an ex officio indictment because
the officer by virtue of his office in Western
Australia is signing the indictment under 579
in the same way that the Attorney-General would
be signing under 579 where a person has been
discharged.or where there has been no committal.

GAUDRON J:  And then you go to the facts of this case and,

why are they not in paragraph 4?

MR RICHTER:  Paragraph 4, in our respectful submission,

is a paragraph which deals with the following

situation and what we say is this: the stream

of ex officio indictments, as against ordinary

MlT8/ll/ND.	24	14/10/88
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indictments consequent upon committal, is preserved

by the use of the words -

acting within the scope of of their authority,

all officers and persons authorized to sign

and present indictments may present

indictments against such persons for any

indictable offences which the Attorney General

or such officers or persons shall consider

to be prima facie disclosed by the evidence -

(Continued on page 26)

MlT8/12/ND	25	14/10/88
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MR RICHTER (continued) Now, if a person is committed for a

burglary and someone is looking at the depositions and
says, "Well, in my view,what is disclosed here is an
aggravated burglary" or, indeed, an armed,robbery
or a simple theft, or whatever the case may be, but

not what the person had been committed for, then the

_person who has the status of having been committed

--for trial then falls within the stream that a person

who is authorized by the Governor to sign and

present the indictments may then, under paragraph 4,

say, "Well, I shall, in fact, draw the indictment in

terms of a simple theft, rather than in terms of a

burglary." But he does that in right of his appointment

under section 578, not as an officer.	On the other
hand - - -

GAUDRON J: Well, why does not that apply here?

MR RICHTER:	It applies the other way. What I was going to do was to simply say that if one takes the case where
there has been no committal, for example; there is
a bundle of statements, there has been no committal,
an ex officio indictment is signed by an officer,
properly authorized, but then that officer or someone
has second thoughts and say, "Well, the evidence we
have got does not disclose that; it discloses
something else." What paragraph 4 does is to give
the saleability to an officer acting ex officio to juggle around with the endictment, as a person who is authorized to sign indictments has in juggling
around with indictments following upon committal.

BRENNAN J: How can that be so when the condition upon which

paragraph 4 operates is that there should be a person who has been committed for trial? Once you have got

that condition satisfied the power conferred by the

paragraph operates.

MR RICHTER:  Yes, that appears to be the case, Your Honour,

although, in our respectful submission, an officer

who is appointed under 579 does not only have the

ex officio power since he is entitled to present

indictments - - -

BRENNAN J:  We do not have to worry about the officers or

ex officios.

MR RICHTER:  No.

BRENNAN J: The problem here is one of whether or· not there is a

person who has .been for trial in respect of an

indictable offence within the meaning of those words

in 579 paragraph 4 and whether or not Mr Nairn is

a person authorized to sign and present indictments

within the meaning of those words in the same

paragraph.

MlT9/l/VH	26	14/10/88
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MR RICHTER:	He has been committed for trial.	That committal has

ceased to have effect by the entering of the

nolle prosequi, in our respectful submission.

GAUDRON J: Where does that say it?

BRENNA,N__J..:  Where is that said?

MR RICHTER: It is not said. It is not said there, but the

entry of the nolle prosequi in terms of the DIRECTOR

eF PUBLIC PROSECUTIONS Act, once it is accepted, and

His Honour Mr Justice Seaman accepted the entry of

the nolle - - -

GAUDRON J: That deems the commitment of the trial never to

have taken place, does it?

MR RICHTER:  No, Your Honour, I would not argue that.

GAUDRON J: Well unless it does deem that - - -

MR RICHTER:	But it spends it force - it spends its force
GAUDRON J:	Spends what force?
MR RICHTER:	Of the commitment to the trial.

GAUDRON J: Well, it may snend the force of the order of

committal. -

MR RICHTER:	Yes.
GAUDRON J:	But it does not deem there not to have been a

committal for trial.

MR RICHTER:	We accept that, with respect.
GAUDRON J:	And is not the fourth paragraph predicated on the

fact of whether or not bhere has been - whether

a person has been committed for trial, not whether

he is presently under an undischarged order made at

a committal?

MR RICHTER:  With respect, that appears to be the correct

construction of that section, although our submission

would be that it ought to be limited to a committal
which is still live in the sense of not having its

force spent - the order of commitment not having
its force spent by the entering of a nolle prosequi.
As my learned friend reminds me, it may well be

limited to a person,who, at the point of time, is subject

to the committal; at the time when this occurs

when the insertion of other counts or where the signing

of an indictment alleging other counts, but the

person is at that stage still committed for trial.

So that in that sense, at the times -if, in some

sense, the sequence had been different in this

incidence and there had not been a nolle prosequi

MlT9/2/VH	27	14/10/88
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entered first but there had been a live indictment,
for example, by virtue of the conunittal for trial and

the signing of the indictment and there had been

an insertion of an additional count, that might have

made the difference. But what is contemplated by the

_fourth paragraph of 579, in our respectful submission,

is that at the time the additional count is inserted

or sought to be inserted, the person is still

conunitted for trial and that that is what the section

is addressing itself to. It also, at the same time, and
somewhat clumsily, in our respectful submission, allows

the situation to occur which, on which we have

submitted, namely, that if there has been an

ex officio indictment and that indictment is current,

there is the ability to add counts to it or subtract

counts to it, as the officer or the Attorney-General

sees fit in those circumstances. But the preservation

of those two streams by which a person is brought to
trial is evident, in our submission, from the

context of the structure of 578, 579 and 581.

What our propositions come down to is: first of all,

the submission that the indictment which was signed

by William Nairn is, in fact, an ex officio indictment;

that he did not have the authority t© sign that

indictment because he is not an officer, was not an

officer, of Western Australia appointed by the

Governor	to present indictment and that therefore
the document that he signed is a nullity.	That, in

short compass, is the argument and it is not dependent
on the construction of paragraph 4 which deals with

situations of the adding of counts or the subtraction

of counts or the altering of counts in an indictment

which is a live indictment, if one can call it that,

but it comes down to the fact that he purports to

sign that indictment not by virtue of an appointment -

I will withdraw that.

The signing of that indictment and the sequence

of its presentation, as is shown in the judgment

of Mr Justice Seaman,indicates that it is being

signed and presented as an ex officio indictment and,

if that be so, then it is a nullity and is not cured

by the fourth paragraph of 579. If the Court

pleases, those are the additional arguments that we

sought to make.

MASON CJ:  Thank you, Mr Richter. Mr Richter, do I take it

that you adopt the same attitude with respect to the

prohibition as that indicated by Mr Castan, namely,

that in the event that the Court is of · opinion

that Mr Justice Seaman's decision is correct and
that there is not sufficient substance to justify

granting special leave on the constitutional question -

the additional matter raised - then it follows that

the application for an order nisi for prohibition must

be refused?

MlT9/3/VH	28	14/10/88
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MR RICHTER:  Only to the extent,iin our respectful submission,

that it depends on the strength with which the

Court holds that belief. In other words, there are

different tests, we would submit, on the special

leave issue and on the prohibition issue, albeit that the granting of the order nisi is obviously

~_9iscretionary, as is the making of the order

absolute.

MASON CJ:	Yes, well, that is a matter for us to determine.
MR RICHTER:	Indeed, but if the Court were to be of the view

that there is no question but that Mr Justice Seaman

was correct on that, then certainly we would take

the view that both applications would have to go.

MASON CJ:  Yes, thank you, Mr Richter. The Court need not

trouble, Mr Heenan.

MR HEENAN:	May it please Your Honours.
MASON CJ:	The Court is of the opinion that Mr Justice Seaman's

decision was correct and the Court has concluded that

there is not sufficient substance in the additional

point raised in support of the proposed appeal, namely,

the constitutional question, to justify the grant of

special leave to appeal. In those circumstances,

the Court is al so of opinio I'._, that there is

insufficient substance in the constitutional question

to justify the grant of an or~er nisi for prohibition.

Being of the opinion that Mr Justice Seaman's

decision is right, the application for an order nisi

for prohibition is refused.

MR HEENAN:  May it please Your Honours, we ask for orders for

costs in respect of each application against each.

MASON CJ: Yes, you cannot resist costs, can you,, Mr Castan and

Mr Richter? In each application the application is refused with costs.

AT 12.40 PM THE MATTER WAS ADJOURNED SINE DIE

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