Peter Bazos and Elite Wood Products (Australia) Pty Ltd v Godfrey, R

[1990] FCA 439

Re: PETER BAZOS and ELITE WOOD PRODUCTS (AUSTRALIA)
And: R. GODFREY, Magistrate and DIRECTOR OF PUBLIC PROSECUTIONS
(COMMONWEALTH)
No. G879 of 1989
FED No. 439
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Foster J.(1)

CATCHWORDS

Administrative Law - review sought of magistrate's

decision committing applicants to trial - whether evidence wrongfully admitted - whether application made within reasonable time.

Administrative Decisions (Judicial Review) Act 1977 - s 5, s 11(4)

Customs Act 1901 (Cth)

Evidence Act 1898 (NSW) - s 14CM

Evidence Act 1905 (Cth) - s 7W

Lamb v Moss (1983) 49 ALR 533

Seymour v Attorney-General of Commonwealth (1984) 4 FCR 498

Hunter Valley Development Proprietary Ltd v Cohen (1984) 3 FCR 344

Castles v Briot Unreported, Full Court of the Federal Court, 23 October 1989.

HEARING

SYDNEY

#DATE 27:4:1990

Counsel for the Applicant: Mr Neil, QC with Mr Strasser

Instructed By: Westgarth Middletons

Counsel for the Respondent: Mr A. Robertson

Instructed By: Director of Public Prosecutions

ORDER

The application be dismissed.

The applicants pay the costs of the respondents.

Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

JUDGE1

In these proceedings, the first and second applicants are applying for an order for review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). The decision sought to be reviewed is one of the first respondent, a magistrate sitting in the local court in New South Wales. His Worship committed the first and second applicants for trial on numerous charges under the Customs Act 1901 (Cth) relating to the importation into Australia of wood products from the Republic of Singapore.

1. They seek the setting aside of the order committing them for trial which his Worship made on 4 November 1988. The grounds upon which this order is sought are:
   

"The decision of his Worship Mr R. Godfrey to commit the applicants for trial made on 4 November 1988 occurred because his Worship erred in law in admitting evidence under s 14 CM of the Evidence Act 1898 by reason that s 14 CM in its application to the said evidence was invalid and/or inoperable as being either beyond the power of the Parliament of New South Wales or having no extra territorial operation or being inconsistent with the Commonwealth legislation which covers the field."

1. Although this court has jurisdiction under the ADJR Act to set aside an order committing an applicant for trial, it is clear that it is to be exercised only in exceptional circumstances: Lamb v Moss (1983) 49 ALR 533. This is particularly so when the complaint as to the proceedings relates to the admission or rejection of evidence: Seymour v Attorney- General of Commonwealth (1984) 4 FCR 498.

2. In this regard, it has been conceded that, although objection was taken to the admission of the evidence referred to in the grounds for review before the learned magistrate, it was not taken on the basis sought to be argued before this Court. The committal proceedings occupied some eleven hearing days, and the objections were taken to the evidence of certain Commonwealth officers who had received authorisation under s 14 CM of the Evidence Act 1898 (NSW). Clearly, the applicants would, in any event, face some severe problems in persuading this court to grant the discretionary remedy sought.

3. They face, as well, the problem arising from the fact that this application was not brought until 22 December 1989, more than one year after the order for committal for trail was made by the learned Magistrate. This period of delay has given rise to a substantive application by the respondents by way of notice of motion that:
   

"The Court refuse to entertain the application for an order of review on the ground that the application was not made within reasonable time after the decision was made."

1. There is also an objection to competency in similar terms. A further preliminary point is taken in the notice of motion that:
   

"The application for an order of review be refused on the ground that adequate provision is made by law other then the Administrative Decisions (Judicial Review) Act 1977."

1. It has been made clear in argument that the other law referred to is the law of the state of New South Wales relating to the conduct of the proposed trial in respect of the charges upon which the applicants have been committed for trial. The matters raised by the notice of motion and the objection to competency have been heard as preliminary matters at the commencement of these proceedings.

2. The motions, so far as they relate to the question of delay, are based on s 11(4) of the ADJR Act. That section reads so far as relevant:
   

"Where:-

(a) no period is prescribed for the making of applications for orders of review in relation to a particular decision; or

(b) no period is prescribed for the making of an application by a particular person for an order of review in relation to a particular decision,

the Court may:-

(c) in a case which paragraph (a) applies - refuse to entertain an application for an order of review in relation to the decision referred to in that paragraph; or

(d) in a case which paragraph (b) applies - refuse to entertain an application by the person referred to in that paragraph for an order of review in relation to the decision so referred to,

if the Court is of the opinion that the application was not made within a reasonable time after the decision was made."

1. Guidance in the application of this section is to be found in decisions of this Court such as Hunter Valley Development Proprietary Limited v Cohen (1984) 3 FCR 344. The question has recently been referred to in the Full Court of the Federal Court of Australia case of Castles v Briot and Ors, 23 October (unreported). In this case, the Full Court said in relation to an application, which had been brought after considerable delay, to set aside an order for committal for trial by a Magistrate, as follows:
   

"In the unusual cases in which interference with such decisions might be justified, it is desirable that the ill-effects of departing from the ordinary course of criminal procedure be minimised by the prompt bringing and disposition of proceedings in this Court. The primary judge said that it was reasonable that proceedings be not filed in this Court earlier than they were, because the complete depositions of the committal proceedings were not available until mid-January

1988. We respectfully disagree. The first respondents, who were represented by senior and junior counsel before the Local Court, must have had, through them, very detailed knowledge of the nature of the evidence relied on by the prosecution, certainly sufficient to enable a decision to be made whether to adopt the course which had been followed. Further, where full explanation has been given by the Magistrate of the reasons for the decisions proposed to be attacked, it should but seldom be necessary to peruse the whole of the transcript of evidence, to determine whether there is in the case a point fit to be taken to this Court under the Administrative Decisions (Judicial Review) Act. It is in the highest degree inappropriate that a leisurely approach towards the institution of proceedings of this sort be encouraged, where the likely consequence is substantially to impede the progress of the relevant case in the State system."

1. In my view, this passage must apply a fortiori in cases where the ground of complaint is not the order for committal as such, or the absence of evidence to support such an order, but the wrongful admission or rejection of evidence during the course of committal proceedings. In such circumstances, the likely effect of the claimed error in the course of those proceedings can be quickly assessed and the decision to take action before this court can be made with all appropriate speed. There would, in such circumstances, obviously be no real need to await the availability of transcript, nor, indeed, to await the ultimate decision of the Magistrate.

2. In the present case, the period of delay is sought to be justified on the basis that it was and has remained unclear whether the evidence objected to was to be relied on at the trial. This matter arises as follows. It was a necessary part of the prosecution case to establish that certain events occurred and certain documents originated in the Republic of Singapore. It apparently did not prove possible to bring to Australia witnesses from Singapore who could give direct evidence touching these matters. Therefore the prosecution sought to avail itself of certain procedures provided for by s 7W of the Evidence Act 1905 (Cth). These procedures involve an application to the Supreme Court of New South Wales for the issue of a document described in the legislation as a "letter of request", which was to be directed to the appropriate judicial authority in the Republic of Singapore, for the examination on oath in a court in Singapore of certain persons who could provide necessary evidence as to these matters.

3. An appropriate order for the issue of such a letter of request was made in the New South Wales Supreme Court and consequent proceedings were taken in the District Court in Singapore. The course of these proceedings is set out in the affidavit of Stuart Westgarth Esq. sworn on 22 December 1989. It is unnecessary for me to refer to them in detail in these reasons.

4. In any event, it appears that problems have arisen in relation to these proceedings, and an appeal is currently pending in the Supreme Court of Singapore. It will depend upon the outcome of that appeal whether the procedure initiated by the obtaining of the letters of request can be brought to fruition, and evidence contemplated in these proceedings thereby become available for use in the prosecution in Australia. It appears clearly enough from correspondence that has been placed before me that the prosecution still entertains the hope of a successful outcome in these proceedings in Singapore, thereby making available to it the evidence referred to.

5. It is clear from the evidence placed before me that the prosecution did not rely solely upon the letter of request procedure to enable it to obtain evidence from Singapore. It relied also upon a procedure under s 14 CM of the Evidence Act 1898 (NSW). It is unnecessary for me to set out the section in these reasons. It provides for the New South Wales Attorney-General authorising relevant officers to obtain information overseas and their relating of that information in evidence in New South Wales, albeit the evidence would be of a hearsay character.

6. The prosecution quite obviously decided no longer to delay the commencement of the committal proceedings in respect of the charges against the first and second applicant. It chose to commence those proceedings without having available to it the evidence sought to be elicited through the letter of request procedure. It chose to rely instead upon evidence obtained by the officers authorised under s 14 CM. As I have already indicated, when that evidence came to be given it was objected to, but not on the grounds sought to be raised in these proceedings.

7. Reliance is placed upon the course of events which I have only briefly detailed as providing sufficient explanation for the delay in bringing these proceedings after the evidence was admitted over objection and after an order for committal for was made by the learned magistrate. It is submitted that the applicants remained in doubt, despite the correspondence between their legal representatives and the prosecution legal advisors to which I have already made reference, as to whether the prosecution would continue to rely on the evidence which it had successfully relied on in the committal proceedings, or whether it would persevere in attempts to obtain evidence of a more direct kind from Singapore pursuant to the letter of request procedure. It is said that these proceedings were delayed because there had been no clear response, despite requests to the prosecution, as to what the prosecution intended to do in relation to the calling of this evidence.

8. I have given due consideration to this argument but find that I am quite unimpressed with it. The procedure invoked in this court is quite clearly not one designed, in itself, to achieve some form of clarification of the prosecution's intentions in an impending trial in the State system. It is designed to achieve the setting aside of committal proceedings on quite specific grounds set out in an application. The possibility of making this application on those grounds must have existed from the time evidence was admitted over objection. It certainly existed from the time when the committal order was, in fact, made. If one has regard to the nature of these proceedings in this Court one cannot, in my view, see that the grounds for failing to bring the proceedings promptly have any basis as providing justification for that delay. In my view, having regard to the provisions of s 11(4), which have already been set out, it is not appropriate for the court to entertain this application at this stage. It simply has not been made within a reasonable time from the giving of the decision sought to be impugned.

9. I should perhaps add that it was also submitted that the grounds on which the evidence was sought to be adduced were clearly insupportable. I have received quite considerable argument on this matter, although it is fair to say that it probably has not been fully argued. I have given consideration as to whether I should express some views on the likely success or otherwise of the objections to the reception of the evidence set out in the application for review. I have decided that it would be entirely undesirable for me to do so . It is most likely that, should the evidence sought be adduced in this form and under this section in the trial of the applicants,it will be objected to and the arguments that have been put before me will be put before the learned trial judge for his consideration.

10. In these circumstances, in my view, it would be inappropriate for me to express any view which might be considered as in any way usurping the role of the learned trial judge, should he be called upon to rule upon the admissibility of this evidence. I would merely say that in my view there is some difficulty in the way of the applicants in establishing inadmissibility on this ground.

11. I should also add that it was made perfectly clear that it is not conceded by the respondents that the rejection of this evidence would necessarily have involved the learned magistrate refusing to commit the applicants for trial. It was put that, on a full consideration and evaluation of the voluminous evidence that was put before him, there was material justifying committal even if this evidence had not been received. This is not a matter which I, of course, have gone into, but it is important in my view to note that there is no concession in this case before me that, had the evidence been excluded, the applicants would necessarily have been discharged from the charges laid against them.

12. It seems to me quite clearly that the matters sought to be agitated before this court in relation to the admission of the evidence which has been referred to are matters that primarily fall for decision in the proceedings yet to occur, namely the trial in the state of New South Wales of the applicants upon the charges upon which they have been committed. It is the court (which I understand to be the District Court of New South Wales) which in my view is the appropriate tribunal for the determination of this question.

13. In these circumstances, I uphold the notice of motion brought by the respondents and also that paragraph of notice of objection to competency to which I made reference at the commencement of these reasons. I also dismiss the application for the order of review brought by the applicants. That being so, I order the applicants to pay the costs of the respondents.