Murchison, Ian McKenzie v Keating, Paul John

Re: IAN McKENZIE MURCHISON
And: PAUL JOHN KEATING
No. WA G26 of 1984
Administrative Law
(1984) ADMN para 96-020 / 54 ALR 386

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Morling J.(1)

CATCHWORDS

Administrative law - judicial review - interlocutory relief to stay committal proceedings - application to review Treasurer's consent to prosecution under s.70 Banking Act - alleged offences under Regulation 41 Banking (Foreign Exchange) Regulations - collateral purpose - abuse of process - breach of natural justice - bona fide consent - Letter of Request procedure - interlocutory relief refused

Administrative Decisions (Judicial Review) Act, 1977

Banking Act, 1959

Banking (Foreign Exchange) Regulations

HEARING

PERTH

#DATE 28:6:1984

ORDER

1. The application be dismissed.

2. Applicant to pay respondent's costs.

JUDGE1

This is an application for interlocutory relief in an application made under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"). In the substantive proceedings the applicant seeks review of a number of decisions made by the respondent, who is the Treasurer of the Commonwealth of Australia. By virtue of s.70(1) of the Banking Act 1959 the Treasurer's written consent is required to proceedings for an offence against that Act or the regulations made thereunder.

The decisions which the applicant seeks to have reviewed are decisions made by the respondent consenting to the institution of proceedings against the applicant for alleged offences against the Banking (Foreign Exchange) Regulations and the Crimes Act 1914 and decisions made by the respondent or a person authorised by him that those proceedings be on indictment rather than by summary prosecution. The decisions are described in the application for review in the following terms:

"(a) a decision made on or about the 22nd July

1983 consenting to the institution of proceedings against the Applicant alleging an offence against Regulation 41 of the Banking (Foreign Exchange) Regulations;

(b) a decision made on a date unknown to the Applicant by the Respondent or a person authorised by him to proceed with that prosecution as would have been possible if consent had been given pursuant to Section 70(2) of the Banking Act 1959 and amendments;

(c) a decision made by the Respondent on or about the 9th February 1984 consenting to the institution of proceedings against the Applicant alleging five offences against the Banking (Foreign Exchange) Regulations and the Crimes Act 1914 and amendments;

(d) a decision made on a date unknown to the Applicant by the Respondent or a person authorised by him to proceed with the said five prosecutions on indictment rather than by summary prosecution as would have been possible if consent had been given pursuant to Section 70(2) of the Banking Act 1959 and amendments.

The applicant claims to be aggrieved by the decisions because, so he alleges, he has been improperly and unnecessarily charged with the offences, and has been rendered liable to trial on indictment rather than by summary trial which is a longer and more extensive procedure involving a potential liability to more serious penalties, without sufficient cause. He also claims that the charges were brought for a collateral purpose and involved an abuse of the process of the court in which they were commenced.
The applicant relies upon a number of the grounds referred to in s.5(1) of the Judicial Review Act. He alleges a breach of the rules of natural justice, failure to observe procedures required by law, improper exercise of the power conferred by the enactment under which the decisions were made, errors of law, and absence of evidence or other material to justify the decisions.
It is intended that committal proceedings against the applicant will commence on 16 July next and it is estimated that the proceedings will extend over a period of several weeks. Since the final hearing of the application for review cannot be completed before the committal proceedings are due to commence, the applicant seeks interlocutory relief to, in effect, stay the committal proceedings until his application under the Judicial Review Act has been finally determined.
The respondent concedes that the decisions made by the respondent to consent to the institution of the proceedings against the applicant were decisions of an administrative character made under the Banking Act and hence are administrative decisions for the purposes of the Judicial Review Act.
The prosecutor of the charges is not a party to the present proceedings. However, counsel for the respondent conceded that if I were of the opinion that a case for interlocutory relief had otherwise been made out, it would be possible to frame an order under s.15 of the Judicial Review Act effectively staying the committal proceedings pending a final hearing of the application in this court. In making this concession, counsel for the respondent did not abandon an argument that he may wish to present at the final hearing to the effect that a consent to the institution of proceedings, once given, is beyond recall by the respondent and beyond suspension or revocation by the court. That is a substantial question which has not been argued before me.
The principles upon which interlocutory relief should be granted in an application under the Judicial Review Act were accepted as those being laid down in Australian Coarse Grain Pool Pty Limited v Barley Marketing Board of Queensland (1982) 46 ALR 398. That is to say, in considering whether inter locutory relief should be granted, the proper approach is first to enquire whether there is a serious question to be tried, and then to determine the matter on the balance of convenience. The Australian Coarse Grain Pool Case was not, of course, a case under the Judicial Review Act. Nevertheless whether the appropriate test in a case brought under that Act is that laid down in the Australian Coarse Grain Pool Case, or the slightly different test propounded by Keely J. in Peakins v Cuthill (1981) 34 ALR 669, i.e. whether circumstances exist which make it just that the court should grant interlocutory relief, is of little consequence for the purposes of deciding the present case. I agree with the observation made by the Full Court in Faingold & Ors v Zammit & Anor (4 January 1984) that it will be difficult for an applicant to show that circumstances exist making it just for the court to grant interlocutory relief unless it is demonstrated that the applicant has a point of substance to argue which, if successful, would result in a judgment in his favour.
I turn now to consider the evidence in support of the application. It is important to bear in mind that the evidence is not in a final state and that any view that I express on the evidence as it presently stands gives no indication of the view that might be taken upon the evidence on the final hearing.
In dealing with the facts for the purposes of the present application, it will be useful to refer first to what I regard as the strongest ground relied upon by the applicant. That is the ground referred to in s.5(1)(e) of the Judicial Review Act, i.e. that the making of each of the decisions was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to have been made. The more important particulars furnished by the applicant in support of this ground were as follows:

"3(a) the consent to the institution of the first

prosecution given in July 1983 was given for a collateral purpose in that there was no immediate intention to proceed with such a charge against the Applicant but the real purpose of the consent was to allow Commonwealth officers unknown to the Applicant but including representatives of all or any of: -

(i) the Royal Commission and,

(ii) the Special Prosecutor, and

(iii) the Federal Police

to avail of a Letter of Request procedure to the Government of Singapore to allow evidence to be taken compulsorily in Singapore under the provisions of the Extradition Act 1976

(Singapore) from persons resident in Singapore who would not otherwise have been amenable to enquiries by or from such Commonwealth officers in order to advance the general enquiries being undertaken by the Royal Commission and/or the Special Prosecutor,

3(b) the consent to the institution of the prosecutions in February 1984 was improper and an abuse of power as it was as a result of and dependent upon the investigations of Commonwealth officers in Singapore which had been made possible by the improper institution of the first prosecution and its consequences as set out in particular 3(a) above,"

The first consent given by the respondent to the institution of proceedings against the applicant was given on 22 July 1983. Following the issue of that consent a police officer on 27 July 1983 swore a complaint against the applicant alleging that between 31 July 1981 and 31 December 1981 the applicant, contrary to Regulation 41 of the Bankruptcy (Foreign Exchange) Regulations, entered into an arrangement with other persons for the purpose of defeating the operation of the regulation. This complaint was numbered 09030. On 22 February 1984 five other complaints were made against the applicant alleging further breaches of the regulations. Notwithstanding that the first complaint was made on 27 July 1983, the first occasion when the applicant was actually served with or charged with any of the above offences was 9 February 1984 when complaint No. 09030 was served upon him. Thereafter he appeared in the Court of Petty Sessions at Perth on 13 February 1984 when the charge was remanded. Shortly thereafter the applicant was served with the remaining complaints and these came before the Court of Petty Sessions on 27 February 1984.
The first that the applicant knew of the possibility of any charge against him was on 1 June 1983 when he was spoken to by officers of the Australian Federal Police. He was then told that they had reason to believe that he had committed certain statutory offences. The applicant had previously attended, in obedience to a writ of subpoena, before the Royal Commission into the activities of the Federated Ship Painters and Dockers Union. He gave evidence to the Commission on a number of occasions in 1982 and was asked questions which included questions as to the transactions that are the subject of the charges laid against him.
On 18 October 1983, at a time when the applicant was to be again summonsed before the Royal Commission, his counsel was advised by letter from the Special Prosecutor that the Australian Federal Police had formed the view, on the evidence then presently available to them, that a prima facie case existed against the applicant of having breached the provisions of Regulation 41 of the Banking (Foreign Exchange) Regulations. The letter continued:

"The Federal Police are in the course of obtaining evidence from overseas, and to this end, they have laid a charge for a breach of Regulation 41 against your client, thereby enabling them to pursue a 'Letter of Request' procedure. The charge has not been served, nor is it proposed that it will be served until such time as it has been concluded on all of the evidence gathered by the investigating police that a substantial offence or offences have been committed."

It thus appears that although the applicant did not know the precise details of the charge that was subsequently served upon him, he was informed of the existence of the charge approximately four months before it was served.
The Letter of Request procedure referred to in the
Special Prosecutor's letter is a procedure available under the Extradition Act 1976 (Singapore) pursuant to which a Singaporean Magistrate may be authorised to take evidence for the purpose of a criminal proceeding pending in a foreign country. Similar legislation is in force in the Crown Colony of Hong Kong. It appears that pursuant to Letters of Request evidence was taken from a number of persons in Singapore and Hong Kong in the latter part of 1983 and that these persons produced a number of documents which were subsequently forwarded, in conformity with the appropriate procedure, to the authorities in Australia.
It was submitted on behalf of the applicant that there is no legislation in force in Australia authorising the issue of the Letters of Request to the Governments of Singapore and the Crown Colony of Hong Kong. Whether this is the case or not, counsel for the respondent conceded that the evidence given pursuant to the Letters of Request could not be tendered in the proceedings against the applicant in Australia. In making this concession, counsel did not concede that a document produced in Singapore or Hong Kong and forwarded to Australia might not be admissible in the proceedings in Australia against the applicant, if the requisite proof of such document were otherwise available so as to justify its reception into evidence.
It appears that on each of the two occasions on which the respondent gave his consents to the prosecutions he did so in response to a minute advising him of the alleged breaches of the Regulations. In the case of the consent given on 22 July 1983 the respondent was furnished with a minute based primarily on material provided by the Special Prosecutor. The minute included background material on the appointment and activities of the Special Prosecutor, a brief outline of the scheme in the execution of which the applicant was claimed to be involved, a description of the offences in respect of which the Special Prosecutor advised that a prima facie case existed against, inter alios, the applicant, and a statement setting out matters which were said to make it urgent to lay the charge against the applicant so as to obtain judicial assistance to the acquisition of necessary documentary evidence from overseas. The minute also included material, including a recommendation, advising the respondent of the Treasury Department's views on the alleged offence and a reference to the possibility of prosecution by indictment. Attached to the minute was a draft form of consent to prosecute.
A separate minute was submitted to the Treasurer in relation to his consent of 8 February 1984. This minute contained information which was also based primarily on material provided by the Special Prosecutor. The information was similar to that contained in the earlier minute and referred to legal advice from the Special Prosecutor to the effect that he was satisfied a prima facie case existed against, inter alios, the applicant in respect of the offences alleged against him. The minute referred to advice from the Special Prosecutor that proceedings be brought by way of indictment.
The Letters of Request were issued on 20 September
1983. Although, as appears from the Special Prosecutor's letter to which I have already referred, the applicant was told that the Letter of Request procedure was being pursued, he was not advised of the precise time and place of the hearings in Singapore and Hong Kong.
It is now convenient to turn to the primary attack made on the consent to the institution of the first prosecution. The applicant alleges that the evidence makes out a prima facie case that this consent was not, in truth, given for the purpose of enabling the prosecution to be brought, but rather for the collateral purpose of allowing Commonwealth officers to avail themselves of the Letter of Request procedure in order to advance the general enquiries being undertaken by the Royal Commission and/or the Special Prosecutor. In support of this submission the applicant points to the delay that occurred between the obtaining of the consent and the time when he was first charged with the first offence, i.e. a delay of about seven months. He also points to the statement made in the Special Prosecutor's letter that the Federal Police were in the course of obtaining evidence from overseas and that "to this end, they have laid a charge for a breach of Regulation 41 against your client, thereby enabling them to pursue a Letter of Request procedure". Reliance was also placed upon the fact that the minute placed before the respondent in order to obtain his consent referred to the fact that it was thought urgent to lay the Regulation 41 charges so as to obtain judicial assistance to the acquisition of necessary documentary evidence from overseas.
Whilst the use of the Letter of Request procedure without notice to the applicant of the specific time and place when it was proposed to implement it in Singapore and Hong Kong might be thought to be less than satisfactory in some respects, I do not think it demonstrates that the respondent's consent of July 1983 was not given bona fide for the purpose of enabling the first charge No. 09030 to be brought against the applicant. On the material furnished to the respondent it was entirely proper for him to give his consent to the bringing of that prosecution. The fact that, as at July 1983, all the facts surrounding the charge were not known to the Special Prosecutor or the Federal Police did not make it improper to seek the respondent's consent to the institution of the charge.
It is plain from the Special Prosecutor's letter that he was minded not to serve the charge upon the applicant if his further investigations established that a substantial offence had not been committed. The utilization of the Letter of Request procedure to obtain information that might throw light upon the gravity of an offence as to which prima facie evidence already existed was no more than the taking of a step to ascertain whether the charge should be prosecuted to a conclusion. I do not think that it can be correctly described as the pursuit of a purpose foreign to the prosecution of the charge itself.
Nor is it to the point that there is no legislative warrant for the Letter of Request procedure, if indeed that is the case. I do not find it necessary to determine for the purposes of this application whether the Letter of Request procedure is authorised by legislation or otherwise. Even if unauthorised, it appears to me to be a step taken in the course of the prosecution of the charges brought against the applicant and other alleged offenders. This being so, there is no basis for characterising it as a step taken for a purpose disassociated with and foreign to the prosecution. Thus, even if it could be shown that it was known to the respondent when he gave his consent in July 1983 that it was intended to use the charge as the basis for the subsequent Letter of Request procedure, that circumstance would not affect the validity of his consent. For these reasons I am of the opinion that, on the evidence presently before the court, there is not a sufficiently serious question to be tried on this aspect of the case to warrant the grant of interlocutory relief.
For the same reasons, a sufficiently serious question has not been raised in respect of the February 1984 consents. Counsel for the applicant submitted that these consents were given as a result of the acquisition by Commonwealth officers of information wrongfully obtained by means of the Letter of Request procedure. Even if I were wrong in my view that the intention to pursue those procedures did not invalidate the consent given in July 1983, the February 1984 consents would not be invalid. The mere fact that evidence to support the charges was wrongfully obtained could not affect the validity of the consents given by the Treasurer under s.70 of the Banking Act. It is plain that such evidence would not, per se, be inadmissible in the proceedings against the applicant, but could be admitted in the exercise of the court's discretion. See R v Ireland (1970) 126 C.L.R. 321 at p.334; Bunning v Cross (1978) 141 C.L.R. 54; Bercove v Hermes (1983) 49 A.L.R. 156 and on appeal (1983) 51 A.L.R. 109. This being so, it can hardly be suggested that the obtaining of such evidence affects the validity of the consents to prosecute.

A number of other matters were relied upon as invali dating the consents. It is undesirable that I should express any firm view on many of these matters at this interlocutory stage, save to say that the evidence presently before the court does not raise a serious issue, let alone a prima facie case, as to the validity of the consents. However, in deference to the careful and detailed argument presented by counsel for the applicant, I should make a few brief comments upon some of the matters argued.
I do not think the evidence presently before the court raises a serious question whether the consents were granted for the purpose of advancing the enquiries of the Royal Commission and the Special Prosecutor and were not granted as the result of any complaint from the Reserve Bank or as a result of the infringement of any policy of the Bank (Particular 3(c)). Nor do I think that any failure by the respondent to consider a request made on behalf of the Crown in right of the State of Queensland for the grant to the applicant of immunity of prosecution as an inducement to the applicant to give evidence for the Crown in charges pending against other persons in Queensland could possibly affect the validity of the consent (Particular 3(d)).
It was further submitted (Particular 3(e)) that the respondent personally failed to consider whether any of the prosecutions should be instituted. On the evidence presently before the court as to the material which was placed before the respondent by his Department I do not think that there is any support for this allegation. Nor is there any support, as the evidence presently stands, for the allegations that the offences alleged to have been committed by the applicant were of such a trivial nature that they did not warrant prosecution on indictment (Particular 3(g)) or at all (Particular 3(h)). Nor is there any evidence at this stage to support the argument (Particular 3(j)) that the institution of the prosecution was based upon an unjustified assumption by the respondent or his advisers that the applicant received a substantial benefit abroad from his role in the alleged transactions.
It was also alleged (Particular 3(i)) that the consent to the institution of prosecutions involved the respondent and the complainant using disclosures made by the applicant in evidence before the Royal Commission in contravention of s.6DD of the Royal Commissions Act and constituted an abuse of the power to consent to the institution of proceeding. Reliance was placed upon Sorby v The Commonwealth (1983) 57 ALJR 248 especially at p.252. There is no evidence presently before the court to establish this allegation. Further, even if there were, it would be a matter for the court hearing the charges to decide whether the evidence should be admitted. I do not think the use of such evidence by the respondent would be an abuse of his power to give his consent under s.70 of the Banking Act.
Although the arguments to which I have already referred were advanced in support of the contention that the applicant was entitled to relief upon the ground referred to in s.5(1)(e) of the Judicial Review Act, the same arguments, or variations of them, were relied upon to support submissions that the consents should be reviewed under other paragraphs of s.5(1). It is only necessary to notice one further submission. It was contended that a breach of the rules of natural justice occurred in connection with the making of the decisions in that the respondent failed to consider the explanations for the applicant's conduct which were available to him or his advisers, and made his decisions without reference to or in ignorance, of those explanations.
The initial difficulty in the way of this submission is that the giving of the consents did not affect the rights of the applicant. The consents did not subject the applicant to any penalty or punishment. The necessity to obtain the Treasurer's consent to a prosecution under the Banking (Foreign Exchange) Regulations is no more than an administrative safeguard against the formulation of charges which the Treasurer might think do not warrant prosecution. See The Medical Board of Queensland v Byrne (1958) 100 CLR 582 at 594. See also, Nicol v Attorney- General for the State of Victoria (1982) V.R. 353 AT P.360-1 where consideration was given to a provision of the Companies Act 1961 (Vic) providing for the bringing of proceedings for an offence against the Act with the consent of the Minister. At p.360-1 of the report of that case Murphy J. said:

"The notion that the consent of the Minister to the bringing of such proceedings cannot be given before extending to an alleged offender the opportunity to be heard does not fit readily into the pattern of matters which in the past have been held to attract the principles of natural justice.

As Mansfield, J. said in Cody v Joseph Pease

(Pty.) Ltd., (1945) St.R. Qd. 81, at p. 91 in a judgment with which the other members of the Full Court of Queensland agreed: 'By his consent the Attorney-General does not decide any controversy, nor does he give any binding or authoritative decision which determines questions of rights and liabilities. His consent may affect the liability of a person after a controversy has been decided by an appropriate judicial tribunal, but his consent does not in anyway determine a right or liability. The Attorney-General's act is, in my opinion, an executive act authorised by Parliament as incidental to its legislative power.'

The discretion of the Attorney-General was also considered in Barton v R. (1981), 55 A.L.J.R. 31.

In that case Gibbs and Mason, JJ. quoted with apparent approval from Professor Edwards The Law Officers of the Crown, 1964 where he, at (55 A.L.J.R.) p.35, said of the Earl of Halsbury, L.C.'s speech in London County Council v Attorney-General, (1902) A.C. 165, at p.289: 'Indeed, Lord Halsbury might well have gone further and drawn the exact analogy between the Attorney's responsibility in instituting a relator's action and the exercise of his authority in those areas of criminal prosecutions, for example, nolle prosequi, "consent" offences and ex officio informations in which the senior Law Officer's fiat is the key which sets the machinery of justice in motion. In all these instance embracing both civil and criminal proceedings, the Attorney-General is accountable not to the Courts but to Parliament for the manner in which he discharges his discretionary authority.'

In my view this discretionary power granted by s.381(2) of the Companies Act is not examinable and is to be exercised by the Minister without supervision limitation or control: cf. R. v Macdermott (1844), 1 Legge 236, per Stephen, C.J., at p 237."

Counsel for the applicant was unable to point to any authority to support the proposition that the rules of natural justice have any application to the making of a decision by a Minister of the Crown to permit the bringing of a prosecution. In my opinion the authorities make it clear that the rules have no application in such a case.
In view of the conclusions I have reached on the strength of the applicant's case on the evidence as it presently stands, it is unnecessary to consider whether in the exercise of the court's discretion it should decline to make an order which would have the effect of intruding into the committal proceed ings. Cf. Lamb v Moss (1983) 49 A.L.R. 533.
It is also unnecessary for me to consider the question of the balance of convenience. However, since this matter was argued I should express my view upon it. In the circumtances of the present case I think the balance of convenience would have been in favour of granting interlocutory relief had the applicant been able to establish that the evidence presently before the court raised a sufficiently serious question as to the validity of the consents. The validity of the consents is in the nature of a threshold point upon which the success of the charges against the respondent must depend. Having regard to the very considerable expense to which the applicant and the prosecutor will be put in the committal proceedings it would have been convenient for the threshold point to be determined before those proceedings commence, had there been sufficient doubt as to the validity of the consents.
In the result, the application for interlocutory relief must be dismissed with costs.

[1984] FCA 176

28 JUNE 1984