R v Ahmadi & Charlton No. DCCRM-96-1442 Judgment No. D3641

[1997] SADC 3641

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Reasons of His Honour Judge Lunn

Hearing

05/08/97.

Catchwords

Section 78B of Judiciary Act notices to Attorneys-General of point to be raised under Australian Constitution - notices not given a reasonable time before the hearing - issue previously decided by the High Court and District Court bound to follow it - held there was no live constitutional issue in the District Court which made s78B apply so as to require adjourning the hearing - authorities considered - adjournment refused.

Representation

R:
Counsel: MS E BOLTON - Solicitors: COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Accused SHIR MOHAMMAD AHMADI:
Counsel: MR J KELLY - Solicitors: LEGAL SERVICES COMMISSION

Accused JASON ANTHONY CHARLTON:
Counsel: MR T BAILEY - Solicitors: TREVOR BAILEY

DCCRM-96-1442

Judgment No. D3641

21 August 1997

(Criminal)

R v AHMADI and CHARLTON

Criminal

Judge Lunn

REASONS ON DEFENDANTS' APPLICATIONS TO QUASH THE INFORMATION AS DISCLOSING NO OFFENCE KNOWN TO LAW

On 20 January 1997 both defendants were arraigned in this Court on a charge of Importing a Prohibited Import contrary to Section 233B(1)(b) of the Commonwealth Customs Act 1901 in that on about 30 September 1996 at Adelaide they imported into Australia not less than a trafficable quantity of heroin. They each pleaded not guilty. A status conference was held on 18 February 1997 at which a trial was set to commence on 5 August 1997 with an estimated duration of ten days. There was no mention of any challenge to the charge as being contrary to the Australian Constitution.

On 22 July 1997 the Court received a letter from the solicitor for the second accused advising, inter alia, that it was to be argued that s233B of the Customs Act was constitutionally invalid and that s78B notices under the Judiciary Act were being prepared. This was the first notice to the Court that any question under the Constitution was to be raised. The matter came before me on 29 July on an application by the second accused to adjourn the trial. As the s78B notices had not then been served I declined to adjourn the trial at that stage, but intimated that I would hear any further application to adjourn on the scheduled trial date of 5 August in the light of how matters then stood. Although I had suggested during that hearing that the notices should be served by the quickest practicable means, and facsimile transmission was mentioned, they were sent by the second accused to the various Attorneys-General only by ordinary post later on 29 July.

On 1 August the Court received a fax from the South Australian Crown Solicitor on behalf of the Attorney-General indicating that he did not wish to intervene in the matter in the District Court, but he may if the matter proceeded to a higher Court. The Northern Territory Attorney-General acknowledged receipt of the notice but gave no intimation in respect of it. Other than those communications there was no response from any Attorney-General to the notice. There was no attendance on 5 August on behalf of any Attorney-General.

At the scheduled commencement of the trial on 5 August there were before the Court applications from each accused that the Information be quashed as not disclosing an offence at law on the grounds that ss233B and 235 of the Customs Act were constitutionally invalid. Counsel for each accused orally applied to adjourn the hearing of the applications and the trial to mid September to give the Attorneys-General reasonable time to respond to the s78B notices. Such an adjournment was opposed by the prosecutor. I deferred ruling on the applications to adjourn and directed that the substantive argument to quash the Informations proceed.

Section 78B of the Judiciary Act 1903 provides:

"(1) Where a cause pending in ..... a Court of a State ..... involves a matter arising under the Constitution or involving its interpretation, it is the duty of the Court not to proceed in the cause unless and until the Court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General of the question of intervention in the proceedings or removal of the cause to the High Court."

The reported authorities on whether a Judge at first instance confronted with a case where s78B notices have been served less than a reasonable time before the trial must of necessity adjourn it do not entirely speak with one voice. In Green v Jones [1979] 2 NSWLR 812 Hunt J (as he then was) said that the party seeking to raise the constitutional issue must satisfy the Court that such an issue is raised and not merely that that party bona fide and genuinely believes that it raises such an issue. He also said at 818:

"I cannot imagine that s78B was intended to permit never-ending challenges to matters which have already been determined by the High Court, particularly recently by that Court. However, I am not prepared in these proceedings finally to determine that question."

In the Marriage of Smith v Saywell (1980) 47 FLR 267 the majority of the Full Court of the Family Court held that there no "matter" was before the Court within s78B of the Judiciary Act. The reason for this ruling was not entirely explicit in the reasons of Watson J for the majority, but it appears that it is based on the competence of the Australian Parliament to pass the relevant provisions of the Family Law Act was not open to challenge because of a previous decision of the High Court directly on the point. (See at p296.) (This view of that case was accepted in Narain v Parnell (below).)

In the Narain v Parnell (1986) 64 ALR 560 at 570-1 Burchett J of the Federal Court said at 571:

"Section 78B only operates when the circumstances it postulates are made to appear to the Court: it does not operate simply because a party asserts those circumstances. It is clear, from the reference to the possibility of intervention or removal of the cause to the High Court upon the initiative of an Attorney-General; that what the section contemplates is a constitutional question which is a live issue in the proceedings. On the basis that the constitutional point depends entirely upon an erroneous construction of the extradition (Commonwealth Countries) Act, the cause pending in this Court does not 'really and substantially' (to use the language of Williams J in Re an application by the Public Service Association of NSW (see below) involve a matter arising under the Constitution or involving its interpretation."

In Re an application by the PSA of NSW (1947) 75 CLR 430 at 433 Williams J, sitting as a single Judge of the High Court, said in relation to a similar section of the Judiciary Act:

"It was submitted that no cause ..... arises under the Constitution or involves it interpretation because this Court has already decided the question which the Attorney-General applied to have removed into this Court. It is clear that the preservation of order and the prevention of crime by means of police is part of the essential executive Government functions of the State of New South Wales. ..... It also seems to me to be clear that this Court has decided that the terms and conditions of employment including rates of remuneration of public servants and other persons employed by a State in the performance of these functions are not subject to the defence power of the Commonwealth, and therefore not subject to the industrial provisions of the Economic Organisation Regulations ..... But however close and authoritative the previous decisions, if the cause, as it does here, really and substantially arises under the Constitution or involves its interpretation, the Court has no option but to grant the application."

There Williams J was dealing with an application under the then s40 of the Judiciary Act to remove a cause from the Industrial Commission of NSW into the High Court on the basis that it arose under the Constitution or it involved its interpretation. It does not follow that the relevant considerations for such a transfer necessarily entirely apply to the adjournment of proceedings under s78B.

Although it may be not entirely consistent with what was said in the last mentioned case, I consider that the other cases cited are sufficient authority for me to hold that no matter arises under the Constitution for the purposes of s78B where that very constitutional issue has already been authoritatively decided by the High Court.

Rule 5.02 of Part IV of the District Court Rules 1992, which apply to these proceedings, provides that the proceedings "will be managed and supervised in accordance with a system of positive caseflow management". To meet the timetable for the proceedings under R5.03, and to ensure the proper use of the Court's judicial resources set aside for the trial on the scheduled date, there is no doubt that the constitutional point should have been raised much earlier than it was, and in sufficient time to have given reasonable notice of it to the Attorneys-General under s78B before the trial date. No proper explanation was put forward as to why such reasonable notice was not given. While the requirements of caseflow management cannot override the express provisions of s78B of the Judiciary Act, insofar as the Court has any residual discretion in the matter, it should not grant adjournments which conflict with its caseflow management principles and where it is not contrary to the interests of justice to refuse an adjournment.

In Kingswell v R (1985) 159 CLR 264, ("Kingswell's case") the appellant challenged the constitutional validity of s233B and 235 of the Customs Act, but the majority of the High Court upheld their validity and affirmed the conviction for an offence under s233B. The decision of the majority was affirmed and applied by a majority of the High Court in its subsequent decision of R v Meaton (1986) 160 CLR 359. The decision of the majority in Kingswell's case upheld several previous decisions of Full Courts of various States on the constitutional validity of s233B and 235 of the Customs Act. The decision in Kingswell's case binds me as a Judge of the District Court unless either:

1. It can be distinguished. Neither the relevant provisions of the Constitution nor of the Customs Act have been amended since Kingswell's case. The points raised here are pure questions of law and can be determined on the face of relevant provisions of the Constitution and the Customs Act without resort to any factual matters. Thus there is no basis upon which the decision in Kingswell's case on the constitutional validity of ss233B and 235 of the Customs Act can be distinguished; or

2. Unless there is some doubt about what the High Court had actually decided. It was not suggested here that there was any ambiguity or uncertainty about what the majority of the High Court had decided in Kingswell's case; or

3. There is higher authority inconsistent with the decision. Here the accused pointed to some passages in subsequent judgments of the High Court which they contended are inconsistent with the majority in Kingswell's case, but in those passages the Judges have not expressly acknowledged that they were departing from Kingswell's case. The High Court has not acknowledged any such inconsistency, and it is not for a lower Judge to say that there is such an inconsistency.

All of the arguments put forward by the accused here to challenge the constitutional validity of ss233B and 235 were theoretically available to be pursued in Kingswell's case. Counsel for the accused did not dispute my assertion in argument that if I was to uphold any of the arguments put forward by the accused it would necessarily mean that Kingswell's case was incorrectly decided by the High Court. It is not proper for a District Court Judge by pursuing lines of reasoning which were not expressly dealt with by the High Court in its earlier decision to reach a decision which necessarily impeaches the validity of an earlier decision of the High Court: Schweppes Ltd v Commonwealth (1944) 45 SR NSW 35 at 40; Ex parte Callinan re Russell (1945) 45 SR NSW 358 at 362; In Estate Turnbull [1975] 2 NSWLR 360. It is not even proper for a District Court Judge to embark on such an exercise, and I do not do so. The principles of stare decisis apply: R v Gronert (1976) 13 SASR 189. The High Court's decision in Kingswell's case is not merely binding authority on the particular lines of argument which were expressly dealt with in the reasons, but it is binding authority for the constitutional validity of ss233B and 235 in the absence of any proper basis to distinguish the decision.

Accordingly, I ruled at the conclusion of the argument that no matter arose under the Constitution or involving its interpretation within s78B. Because of Kingswell's case there can be no live issue before this Court on the points raised by the accused to challenge ss233B and 235. There would be no useful purpose served in having the Attorneys-General before this Court because I could not act other than to apply Kingswell's case. Thus s78B did not operate to require an adjournment of the proceedings. Following Kingswell's case I found ss233B and 235 of the Customs Act to be constitutionally valid and thus that the Information did disclose an offence at law. The application of each accused to quash the Information was therefore dismissed. Both accused were then re-arraigned and each pleaded guilty.