Reid, C.K. v Nairn, W.I
[1985] FCA 165
•24 APRIL 1985
REID v. NAIRN (1985) 6 FCR 261
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
SOUTH AUSTRALIA DISTRICT REGISTRY
Fisher J.(1)
CATCHWORDS
Administrative Law - Judicial review - Applicant in possession of prohibited import - Decision of prosecutor not to consent to matter being dealt with summarily - Whether decision made under an enactment - Whether exercise of power under an enactment - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 3, 13 - Customs Act 1901 (Cth), ss 233B, 235 - Crimes Act 1914 (Cth) - Director of Public Prosecutions Act 1983 (Cth), ss 9, 14 - Judiciary Act 1903 (Cth) - Justices Act 1921 (SA), s 122.
HEADNOTE
Held: (1) A decision of a prosecutor not to consent to summary trial in respect of an offence under s 235 of the Customs Act 1901, is not a decision made pursuant to a power conferred in an enactment and is not, therefore, a decision to which the provisions of the Administrative Decisions (Judicial Review) Act 1977 applies.
(2) Having instituted a prosecution by way of information for an indictable offence, the right of the prosecutor was to have committal proceedings followed by trial in the Supreme Court, and, whilst s 235(6) of the Customs Act provides that the matter may be dealt with summarily, it does not give or confer upon the prosecutor any power which he did not already possess.
(3) The provisions of s 235(6) of the Act do not confer a power upon the prosecutor to consent to summary trial but merely indicate the consequences of the exercise of such a power.
Australian National University v. Burns (1982) 64 FLR 166; 43 ALR 25; Baker v. Campbell (1982) 66 FLR 29; 44 ALR 431; McDonald v. Hamence (1984) 1 FCR 45; R. v. Doyle (1980) 48 FLR 92; Pearce v. Cocchiaro (1977) 137 CLR 600, referred to.
HEARING
1985, March 15-17; April 24. #DATE 24:4:1985
APPLICATION
Application pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
T A Gray QC with M E Hoile, for the applicant.
A G Uren QC with A Vicic, for the respondent.
Cur adv. vult
Solicitors for the applicant: M A Griffin & Co.
Solicitors for the respondent: Australian Government Solicitor.
SMW
JUDGE1
24 April 1985
FISHER J. This is a further stage in the epic struggle in which the parties to this matter are involved. It arises in the following circumstances, which have required it to be heard and determined as a matter of urgency because committal proceedings are due to commence on 1 May 1985. I have, however, at various times been reminded of the comments of Bray C.J. upon the circumstances of an equally hard-fought matter in City of Marion v. Lady Becker (1973) 6 SASR 13 at 15 where he said:
"The learned Judge (Wells J) at the beginning of his reasons said that the proceedings by the time the Planning Appeal Board had made its determination had worked themselves into a state of extraordinary complexity and that the steps by which they got there bore the indicia of a Greek tragedy. The argument before us further complicated the complexities, and I must confess that the literary analogy which suggested itself to me during the hearing was with the works of the late Franz Kafka."
On 7 December 1984 the applicant commenced proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the Act) seeking the review of a decision which the respondent allegedly made on 31 August 1984. Stated shortly, the decision was, as identified by the Australian Government Solicitor, a decision that the prosecution of the applicant for a breach of the Customs Act 1901 (Cth) (the Customs Act) would not be heard and determined in a Court of Summary Jurisdiction. At the same time as the applicant's solicitor was advised to this effect, he was informed that the decision was made on 31 August 1984 by William Ian Nairn for and on behalf of the Director of Public Prosecutions.
In the application for review, it was alleged that the decision of the respondent, that the prosecution of the application would not be determined in a Court of Summary Jurisdiction but in the Supreme Court, was
(a) made in breach of the rules of natural justice,
(b) an improper exercise of the power conferred by the Customs Act,
(c) made when no evidence or other material justified the making of the decision.
The applicant identified in his particulars the power which he contended was conferred by the Customs Act as being s 235(4) and s 235(6) of that Act. In this hearing before me, as well as in the contested application for discovery, reliance was only placed on s 235(6) which is in the following terms:
"Where proceedings for an offence referred to in sub-section (1) or (2) are brought in a Court of Summary Jurisdiction, the Court may commit the defendant for trial or to be otherwise dealt with in accordance with law or; if the Court is satisfied that it is proper to do so and the defendant and the prosecutor consent to it doing so, may determine the proceedings summarily."
Counsel for the respondent obtained an extension of the time allowed by O 54, r 4 in which to file and serve a notice of objection to competency. This notice was filed on 25 January 1985 and the grounds of objection therein were stated as follows:
"The Respondent objects to the jurisdiction of this Court to try this application for an Order of Review under the Administrative Decisions (Judicial Review) Act 1977 on the grounds that:
1. This Honourable Court does not have jurisdiction to try the within matter because:
(a) the applicant was notified in writing by letter dated 25 October 1984 that he was not entitled to make a request for reasons pursuant to s 13(1) of the Administrative Decisions (Judicial Review) Act
(b) and therefore the said Application for Judicial Review is not in compliance with s 11 of the said Act in that it is out of time."
With the consent of the parties, consideration of this objection was deferred until the trial of the main issues in the matter.
On 11 April 1985, the day before the trial commenced, the respondent filed, without leave or any extension of time, a further notice of objection to competency. This notice contended that the applicant was not a person aggrieved within the meaning of s3(4) of the Act, that the decision was not a decision within the meaning of the Act, and that it was not a decision of an administrative character. These matters, unless expressly abandoned, were argued by the respondent by way of opposition to the applicant's claim for a review. The respondent ultimately abandoned its contention that the applicant was not a person aggrieved.
It is necessary to identify as carefully as is possible the evidence upon which this application is to be determined. This is particularly the case as both parties filed many affidavits at the time of the interlocutory application for discovery, none of which were at that stage the subject of cross-examination and only a few of which were before me on this main hearing. The respondent, for his part, did not proffer any evidence at the hearing, although some of his affidavits filed at the interlocutory hearing were tendered by the applicant. Subpoenas both duces tecum and ad testificandum were issued by the applicant addressed to most of the deponents of the respondent's affidavits. However, these were not all required to be answered and no further evidence was forthcoming as a consequence. In reliance upon the reasoning of the High Court in Lane v. Registrar of Supreme Court of New South Wales (1981) 148 CLR 245 at 258-259. I set aside certain portions of the subpoenas duces tecum as being too vague and general and as appearing "to have been used as a means of discovery". The applicant gave oral evidence and was subjected to cross-examination. I find his evidence and the evidence of his first solicitor Mr Retalic, who was also cross-examined, acceptable. An affidavit sworn by Mr Retalic in the interlocutory proceedings was read and in part admitted into evidence.
The relevant facts as I find them are as follows.
On 15 April 1984 the applicant was arrested at the Adelaide Airport and was found to have in his possession approximately 3.2 g of cocaine. He also had in his luggage $4,750 in addition to $620 in his wallet.
At the time of his arrest he gave certain information to the Federal Police who interviewed him. He was charged on an information for an indictable offence by John Lundie Traill (the informant), a member of the Federal Police. The information stated that the applicant on 15 April 1984 without reasonable excuse had in his possession a prohibited import, namely cocaine, to which s 233B of the Customs Act applied and which was reasonably suspected of having been imported into Australia in contravention of the Customs Act, contrary to s 233B(1)(ca) of the said Act. It was common ground that the quantity of cocaine in the applicant's possession was approximately 3.2g, an amount which exceeded the prescribed trafficable quantity under Sched VI of the Customs Act, which is 2 g. The consequence was that he had, for the purposes of that Act, in his possession a trafficable quantity and thus carried the onus of proving that he did not possess the cocaine for the purpose of trafficking. The applicant appeared before the Adelaide Magistrates Court on 16 April 1984 where his solicitor, Mr Retalic, made a successful application for bail and obtained a remand of the criminal proceedings.
Thereafter a number of matters occurred upon which the applicant's counsel heavily relied to establish that his client had a "legitimate or reasonable expectation" as a result of which he was entitled to the benefit of the principles of natural justice.
Subsequent to the attendance in Court on 16 April 1984, Mr Retalic telephoned Mr Justin O'Halloran of the Australian Government Solicitor's Office, to discuss whether the charge against the applicant could be "disposed of by way of a guilty plea in the Adelaide Magistrates Court". It can be assumed that Mr Retalic was therby on this, and subsequent occasions, indicating that it was the intention and wish of his client to concede to the Magistrates Court that he had the quantity of cocaine in his possession, but wished to satisfy the court that it was in his possession for personal use and not for the purpose of trafficking. Steps thereafter taken by the applicant or his solicitor were in an effort to convince the prosecution that this was the case and to obtain a recommendation from the Federal Police who were investigating the matter that it be heard and determined in the Magistrates Court. The powers of that court in relation to penalty, if it determined the matter under s 235(6) above set out, were prescribed by s 235(7) as follows:
"235(7) Where a court of summary jurisdiction determines proceedings summarily in accordance with sub-section (6), it shall not impose a fine exceeding $2,000 or sentence the defendant to imprisonment for a period exceeding 2 years, but may impose both a fine and a period of imprisonment in respect of the offence."
The applicant and his solicitor doubtless contemplated that if the matter was determined by the Supreme Court the penalty imposed would probably exceed the limits prescribed for the Magistrates Court. Mr Retalic gave evidence to this effect. The maximum penalty which the Supreme Court could impose was twenty-five years imprisonment or a $100,000 fine. There was also evidence to the effect that they believed, at least at the outset, that the matter would be dealt with more expeditiously and with less expense in the lower court.
Mr Retalic said that, after the quantity of cocaine in the applicant's possession had been confirmed, he spoke again to Mr O'Halloran. The latter explained that the Federal Police were suspicious that the applicant was involved in trafficking because of inconsistencies in the information he had given to the Police and because of the large amount of money found in his luggage. Mr O'Halloran said no decision had been made whether the matter would be disposed of summarily or in the Supreme Court.
Thereafter in July or early August 1984 Mr Retalic spoke with the police officers who had interviewed the applicant on his arrest. They were Detectives O'Connell and Barrett. He intimated that if they were interested in obtaining from the applicant information about the circumstances of his possession of the cocaine, a further interview could be arranged. He said that in return for information supplied at the interview he and his client would want an agreement that the charge be dealt with summarily in the Magistrates Court. Detective Barrett said he would have to speak to his superiors to see if it was worthwhile for a further interview to take place on that basis. Subsequently the detective said that a further interview should take place. Arrangements were made for the applicant to travel from Sydney to Adelaide for this interview.
On 24 August 1984 Mr Retalic and his client attended at the headquarters in Adelaide of the Federal Police, where an interview took place. Prior to that interview Mr Retalic said that he spoke to the two detectives. He said that his client was prepared to speak to them but that it was on the understanding that they must reciprocate and provide him with a benefit, namely, an agreement that the matter be dealt with in the Adelaide Magistrates Court. The detectives responded that they could make no promises but could make a powerful recommendation if the information they obtained was to their satisfaction. Mr Retalic and the applicant both stated that it was on this basis that the applicant was interviewed in the absence of his solicitor by the two detectives. At the conclusion of the interview the detectives said that they were satisfied with the information, but would have to check a few minor matters. Detective O'Connell suggested to Mr Retalic that he write to the Federal Police renouncing the claim to the large sum of money found in the luggage, but making a claim for the balance. This was duly done.
About seven to ten days after the interview Mr Retalic spoke to Detective O'Connell. The latter said that he had not checked the points which required verification because the Federal Police had decided to make a recommendation that the matter be dealt with in the Magistrates Court. He said that they accepted the applicant's account of his involvement in the offence and that they had either sent, or were about to send a memo to the Australian Government Solicitor recommending that the matter be dealt with in that court.
Mr Retalic said that, notwithstanding having made a further approach to a solicitor in the employ of the Australian Government Solicitor, he was unable to ascertain whether such a recommendation had been made until shortly prior to 24 October 1984 when the committal hearing was due to commence in the Magistrates Court. Two or three days before that date he was advised by that solicitor that they would not consent to the matter being dealt with summarily. Upon receipt of that information Mr Retalic wrote a letter to the Deputy Crown Solicitor, a copy of which is hereunder:
" 23rd October, 1984 Deputy Crown Solicitor,
Mutual Building,
Gawler Place,
ADELAIDE. S.A. 5000
Attention Mr. W. Mesiti
Dear Sir,
re:Christopher Kidman Reid
As you know, I act for the above-named.
It is the wish of my client, and also members of the Australian Federal Police who have interviewed him since his arrest, that this matter be disposed of by plea of guilty in the Adelaide Magistrate's Court. I understand that a report from the police, sent to you, made this recommendation.
I further understand that you have refused to consent to such a course. Pursuant to Section 13 of the Administrative Decisions (Judical Review) Act 1977 as amended, my client requires that you furnish a statement in writing, setting out your findings on what you regard as material questions of fact, and giving the evidence or other material on which such findings are based.
Yours faithfully,
W.R. RETALIC."
The Australian Government Solicitor responded to this letter as hereunder:
" 25 October, 1984 W R Retalic
41 Maesbury Street
KENSINGTON SA 5068
Dear Sir
CHRISTOPHER KIDMAN REID
Alleged breach Section 233B(1)(ca) of the Customs Act 1901 I refer to your letter dated the 23rd October 1984 in relation to the abovenamed.
I confirm that the decision has been made that the prosecutor in this matter does not consent to the matter being heard and determined in a Court of Summary Jurisdiction.
With respect to your request for a statement in writing pursuant to Section 13 of the Administrative Decisions (Judicial Review) Act 1977 regarding the decision to not consent to the matter being dealt with summarily, I am of the opinion that you are not entitled to make such a request.
Accordingly, I decline to provide the reasons you have sought. Yours faithfully
W I NAIRN
For and on behalf of the
Director of Public Prosecutions"
Mr Retalic requested further information by letter dated 27 November 1984 as follows:
"Australian Government Solicitor
G.P.O. Box 2150,
ADELAIDE S.A. 5001
Dear Sir,
RE: C.K. REID; YOUR REF; 84011581JLS
I refer to your previous correspondence, and note your letter of 25 October.
Please confirm (if it is the case) that it is the decision of your Mr. W. Mesiti, that the matter not be heard summarily. If it is the decision of another legal officer, I would be pleased if you would provide his name.
I would also be obliged if you would provide the date on which the decision was made.
Yours faithfully
W.R. RETALIC"
This information was supplied by letter dated 3 December 1984 as follows:
"Mr W R Retalic
Barrister & Solicitor
PO Box 9
KINGSWOOD SA 5062
Dear Sir
RE: Christopher Kidman REID - Alleged Breach Customs Act 1901 I refer to your letter dated the 27th November 1984. The decision that the within matter not be heard and determined in a Court of Summary Jurisdiction was made by William Ian Nairn, for an
(sic) on behalf of the Director of Public Prosecutions. The date of the decision was the 31st day of August 1984.
Yours faithfully
W I NAIRN
for and on behalf of the
Director of Public Prosecutions"
Mr Retalic said in his affidavit that this decision of the respondent exposed the applicant to a far greater range of penalties if the matter proceeded in the Supreme Court. He said that the applicant provided information to the Federal Police on the express understanding that if they found that information to be satisfactory they would "favour him with the benefit of their strong recommendation to the prosecution that the matter be dealt with summarily". He further said that he had never been given any reason for the decision not to consent to the summary hearing of the charge. He then filed the application on 7 December 1984. Particulars of the grounds thereof were sought and given in wide and general terms.
There was further evidence before me, primarily emanating from affidavits filed on behalf of the respondent in the interlocutory proceedings, which was tendered by counsel for the applicant on this hearing. Notwithstanding the fact that the decision-maker was not obliged to give reasons for his decision there was evidence which told of the procedures that he adopted.
The decision not to consent was in fact made by Walter Antonio Mesiti (Mr Mesiti), a Principal Legal Officer in the Adelaide Office of the Australian Government Solicitor. Two affidavits sworn by him in the interlocutory proceedings were tendered by the applicant. One was the affidavit of discovery sworn pursuant to my order of 25 March 1985 and was of no further significance. One paragraph only of the other affidavit was initially tendered by counsel as an admission. However, because I was of opinion that the other paragraphs modified and coloured the admission, counsel tendered the whole affidavit (Wimpole v. McIlwraith (1923) VLR 553). In this affidavit Mr Mesiti said that the respondent had exercised certain powers and functions of the Director of Public Prosecutions pursuant to s 23 of the Director of Public Prosecutions Act 1983 (Cth). Prior to making the decision he had read and considered a memorandum from the Federal Police dated 27 August 1984. As much of the debate before me centred upon the content and meaning of this memorandum it is necessary to set it out in full. It reads:
"AUSTRALIAN FEDERAL POLICE
27 August 1984
Australian Government Solicitor,
99 Gawler Place
ADELAIDE, S.A. 5000
Interview of Offender for Customs Act breach OFFENDER: Christopher Kidman REID, 17.06.52.
On Friday 24.08.84, the abovenamed and his Solicitor Mr. Retalick,
(sic) attended at Regional Headquarter, where REID outlined details leading up to his arrest for possession of a quantity of cocaine at Adelaide Airport on 15.04.84.
2. REID stated that he had purchased the five envelopes of cocaine from a person known to him as John MCDEVITT a U.S. citizen whom he had first met in Spain in 1983. REID claims MCDEVITT came to Australia in early April and contacted him at his home in Sydney. REID subsequently purchased the cocaine from MCDEVITT for $160 per envelope. During an evening together REID told MCDEVITT he was going home to Adelaide to visit his mother. MCDEVITT asked REID if he would contact one of his friends called Nick or Mick and pick up some 'things' to bring to Sydney. He was given a telephone number to ring.
3. On the day prior to his arrest REID contacted MCDEVITT'S friend and they subsequently met at a club in Adelaide. Nick or Mick gave REID a padded envelope to take to MCDEVITT. REID later opened the envelope and found it contained $4750 in banknotes. REID was suspicious but decided to return to Sydney as planned. He was subsequently arrested on the same evening.
4. REID'S account of events is believable considering that routine enquiries reveal that John MCDEVITT born 19.10.48 is recorded as arriving in Australia at Sydney on 31.03.84. His contact address and telephone number for the hotel where he was staying in Sydney, were recorded in REID'S notebook taken from him on 15.04.84.
5. REID states he has since destroyed the telephone contact number for Nick or Mick and was unable to identify the person from photographs shown to him. He now suspects that the $4750 may be the proceeds or drug sales by MCDEVITT although he cannot say for certain.
6. In view of the information forthcoming from REID, his counsel intends contacting your office to ascertain your opinion as to whether REID'S matter can be determined in the Magistrate's Court on the basis that the cocaine was for his personal use. Efforts to locate MCDEVITT are continuing. These details are forwarded for your information. G. Burton
for (K.W. THOMPSON)
Commander,
CENTRAL REGION."
Mr Mesiti said in his affidavit that neither prior to the making of the decision nor at any time had Mr Retalic made any written submissions to his office. However, he was aware of and took into account the substance of Mr Retalic's telephone conversation with Mr O'Halloran of 8 June 1984. An affidavit sworn by Mr O'Halloran concerning this conversation was also tendered by the applicant from which it was possible to ascertain the substance of that conversation. Mr Mesiti said that he was aware that Mr Retalic was endeavouring to have the matter dealt with in the Adelaide Magistrates Court and that Mr Retalic had told one of Mr Mesiti's officers that the investigating officers would recommend that it remain in the Magistrates Court. At some time prior to making the decision Mr Mesiti spoke to Sergeant Burton, the signatory to the above-named memorandum and the Officer-in-Charge of the Drug Unit in the Central Region, because he was aware of the discussions between Mr Retalic and the Federal Police. He said Sergeant Burton told him that the Police had no views as to the court which would finally dispose of the matter. He further said that he fully considered the brief of evidence submitted to the office of the Australian Government Solicitor by the Federal Police.
An affidavit sworn by Sergeant Burton in the interlocutory proceedings was also tendered ultimately without objection by the applicant. Exhibited thereto was a copy of the abovementioned memorandum, the original of which, Sergeant Burton said, was given to him by Detective O'Connell as a typed memorandum prepared by him. He said that no member of the Federal Police had made any formal recommendation to the Australian Government Solicitor or any other person that the prosecution of the applicant be dealt with summarily. Furthermore, he had no knowledge of any informal recommendation to that effect.
Mr O'Halloran's affidavit prepared for the interlocutory proceedings was also tendered ultimately without objection. He deposed to a telephone call from Mr Retalic on 8 June 1984 concerning the prosecution of the applicant. Mr Retalic mentioned certain circumstances of the matter, many of which the applicant corrected in the interview of 24 August 1984, and asked what were the prospects of having the matter dealt with summarily. Mr O'Halloran's reply was that the general attitude of his office was to leave the question of a person's purpose in possessing a drug to the Supreme Court if the weight of the drug was the trafficable quantity. He said that, where there was unequivocal evidence that the purpose of possession was not sale or other commercial dealing, there might be agreement to the matter being dealt with summarily. However, after perusing quickly a file which he had, he indicated that there might be some difficulty as the applicant had given a different explanation for possession when questioned and had behaved suspiciously in the toilets at the airport. The substance of the conversation which Mr O'Halloran had with Mr Retalic on 8 June 1984, appeared in the former's affidavit and Mr Mesiti was aware of this when he made the decision.
This was the evidence upon which the applicant contended the court should review the decision. He submitted that he had been denied natural justice and that the decision-maker had failed to take into account relevant considerations.
However, the first question for determination must be whether the decision was a decision to which the Act applies. Such a decision is defined under s 3(1) of the Act as a "decision of an administrative character made . . . under an enactment". Bowen C.J. and Lockhart J., in their joint judgment in Australian National University v. Burns (1982) 64 FLR 166 at 173; 43 ALR 25 at 31, approved the statement of the trial judge when he said that the "clear object of the Act is to confer rights on aggrieved citizens as a result of the exercise of powers conferred by an enactment". It follows that the inquiry here must be whether the power to make a decision to consent to, or refuse to consent, is a power conferred by s 235(6) of the Customs Act. This provision, to the extent relevant, provides that when proceedings for any offence such as the present are brought in a Court of Summary Jurisdiction.
"if the Court is satisfied that it is proper to do so and the defendant and the prosecutor consent to it doing so, may determine the proceedings summarily".
By the further notice of objection filed the day before the trial commenced the respondent objected to jurisdiction on the ground inter alia, that
"the matter alleged by the applicant as being a decision is not a decision within the meaning of the Act, but the exercise of a right given by the Customs Act to a party to litigation under that Act".
The emphasis in this ground of objection was upon the exercise of a right given by the Customs Act, as opposed, in the words approved by Bowen C.J. and Lockhart J. above, to "the exercise of powers conferred by an enactment".
Counsel for the respondent contended that the respondent's consent was not the exercise of a power given by an enactment but was the exercise of a right emanating from his position as a litigant. In support of this submission he referred to Baker v. Campbell (1982) 66 FLR 29 at 34 and 37-38; 44 ALR 431 at 435 and 437-438 per Keely J. and McDonald v. Hamence (1984) 1 FCR 45 at 50 per Neaves J. and the discussion on those pages.
Counsel for the applicant vigorously submitted to the contrary, arguing ingeniously that the "entitlement" (to use a neutral word) of the prosecutor under s 235(6) was to veto the proposal of the magistrate that he determine the proceedings summarily. He contended that if the prosecutor refused consent the court could not proceed to determine the matter summarily. It followed, he said, that the prosecutor was given by that subsection the "power" to prevent the court proceeding summarily and the power to oblige it to commit the applicant for trial in the Supreme Court. He contended that Baker v. Campbell (supra) was not in point, as Keely J. was there concerned with s 10 of the Crimes Act 1914 (Cth) which gave no power or authority to the police officer to such a warrant. That section, he noted, did not refer to any decision of a police officer.
It is my view that the contention of counsel for the respondent is correct but not exactly in the manner he put it. The entitlement of the prosecutor to refuse to consent is not a right which emanates exclusively from his function as a litigant. It is a right which he has by virtue of the action he has taken under s 235(4). This provision is as follows:
"235(4) An offence referred to in sub-section (1) or (2) may be prosecuted summarily or upon indictment or, where the law of the State or Territory in which the proceedings are brought makes provision for an offender who pleads guilty to a charge to be dealt with by the Court otherwise than on indictment, the Court may deal with an offender in accordance with that law."
The offence with which the applicant was charged was an offence referred to in s 235(2). The prosecutor was therefore entitled to elect whether the offence would be prosecuted summarily or on indictment. He decided on the second alternative, and an information for an indictable offence was sworn out. In the ordinary course the matter would in consequence not be determined summarily in the Magistrates Court but by way of trial, if necessary before a jury, in the Supreme Court. It is my opinion that, having instituted a prosecution upon information, the right of the prosecutor was to have committal proceedings in the lower court and to have the applicant committed for trial in the Supreme Court. The prosecutor as a litigant having commenced a prosecution in this matter in accordance with s 235(4) the matter could only be dealt with in the Magistrates Court if the prosecutor consents. Section 235(6) does not give to or confer upon the prosecutor any power in the relevant sense, which he does not already possess. The decision not to consent was therefore not made pursuant to a power conferred by s 235(6) and this Court has no jurisdiction to review it under the Act.
Counsel for the applicant was doubtless correct when he said that the consequence of a refusal of the prosecutor to consent to a summary determination is to "veto" the exercise by the magistrate of his discretion so to determine the matter. However, this does not mean that the "power" to refuse consent must be found in s 235(6). That subsection merely indicates what in the circumstances is the consequence of the exercises of such a power. I find it more difficult to ascertain, if it be necessary, the source of the power, for to do so necessitates an entry into a legislative jungle. The fact that the offence with which the applicant was charged is punishable by imprisonment for more than six months means that under the laws of the Commonwealth it is prima facie an indictable offence, Acts Interpretation Act 1901 (Cth), s 42. However, this section applies unless the contrary intention appears. The offence will remain an indictable offence even though statutory provision is made for summary trial rather than trial by jury: R. v. Doyle (1980) 48 FLR 92. However, s 235(6) is an exceptional provision in that the matter can only be dealt with summarily if both prosecutor and defendant consent. Section 68 of the Judiciary Act 1903 (Cth) requires that in matters of practice and procedure the law of South Australia will apply, as nearly as applicable. In Pearce v. Cocchiaro (1977) 137 CLR 600 at 608 Gibbs J. as he then was, said:
"The laws of South Australia respecting the procedure to be followed will apply and be applied so far as they are applicable: s 68(1)(a) and (b) of the Judiciary Act. The provisions of the Justices Act will, so far as they are applicable, therefore provide the procedure by which the preliminary examination is conducted and the defendant is either summarily dealt with or committed for trial . . . ."
The relevant law of South Australia is to be found in s 122 of the Justices Act 1921 (SA) and this leads to the view that the procedure most nearly applicable is that appropriate to minor indictable offence, a concept which I believe to be unknown in the field of Commonwealth law.
The end result is that fortunately I do not find it necessary to determine the source of the power. Doubtless I have done no more, or not much more, than identify the problem. The only relevant Commonwealth legislation would appear to be s 235(4), which enables a prosecutor to elect. Having elected, he as a litigant has the right to refuse consent. To the extent that such a power is a procedural right, its source would be either the inherent right of a litigant or would be found in the provisions of the Justices Act of South Australia. The right is not the consequence of a power conferred by an enactment of the Commonwealth Parliament.
This finding necessarily concludes the matter against the applicant. However, as so little time was spent during the hearing on this issue and relatively so much on the grounds for reviewing the decision, it is appropriate that I deal with the applicant's contentions on the latter matters. His general submission is beyond argument, namely, that the decision-maker must act fairly and consider all relevant matters and, where the circumstances call for it, he must accord the applicant "the rights of natural justice". In respect of these matters the applicant's complaints were virtually the same, namely, that the decision-maker did not take into account the fact that the investigating police were of opinion that the cocaine was possessed for personal use and that they were recommending that the matter be dealt with summarily. The applicant contended that he had been denied natural justice in that he had not the opportunity to make representations to the decision-maker on these matters and that if accepted he would plead guilty in the Magistrates Court. His right to natural justice was based upon a "reasonable expectation" that he would be invited to make such representations.
The applicant placed considerable reliance upon the decision of the Privy Council in Attorney-General of Hong Kong v. Ng Yuen Shiu (1983) 2 AC 629. The Full Court of this Court followed that decision in its reasons in Cole v. Cunningham (1983) 49 ALR 123 at 132. It said in respect of the former decision:
"Their Lordships then referred to the decision of the House of Lords in O'Reilly v. Mackman (1982) 3 WLR 1096 and said:
'The expectations may be based upon some statement or undertaking by, or on behalf of, the public authority which has the duty of making the decision, if the authority has, through its officers acted in a way that would make it unfair or inconsistent with good administration for him to be denied such an inquiry.' It is to be observed that the Privy Council, like Aickin J. in Heatley, equated a legitimate expectation with a reasonable expectation."
However, in Council of Civil Service Unions v. Minister for the Civil Service (1984) 3 WLR 1174, Lord Fraser said at 1187:
"Legitimate, or reasonable expectation, may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue . . . . I agree with Lord Diplock's view, expressed in the speech in this appeal, that 'legitimate' is to be preferred to 'reasonable' in this context. I was responsible for using the word 'reasonable' for the reason explained in Ng Yuen Shiu, but it was intended only to be exegetical of 'legitimate'."
Lord Roskill at 1200-1201 spoke in a like vein:
"Though the two phrases can, I think, now safely be treated as synonymous for the reasons there given by my noble and learned friend, I prefer the use of the adjective 'legitimate' in this context and use it in this speech even though in argument it was the adjective 'reasonable' which was generally used. The principle may now be said to be firmly entrenched in this branch of the law. As the cases show, the principle is closely connected with 'a right to be heard'. Such an expectation may take many forms, one may be an expectation of prior consultation. Another may be an expectation of being allowed time to make representations especially where the aggrieved party is seeking to persuade an authority to depart from a lawfully established policy adopted in connection with the exercise of a particular power because of some suggested exceptional reasons justifying such a departure."
Counsel for the respondent took the point that the applicant was not entitled to have applied in his favour any of the rules of natural justice because the decision did not deprive him of any legitimate expectation of the receipt of any right or benefit. However, he conceded that I was bound by the decision of the Full Court in Cole v. Cunningham (supra).
The difficulties of the applicant are more basic and to some extent arise out of deficiencies in the evidence. Although no point was taken, it was always a matter of conjecture whether the decision-maker, the prosecutor under s 235(6), was Mr Traill, Mr Nairn, Mr Mesiti or the Director of Public Prosecutions. In consequence I am far from satisfied "on behalf of" whom the promises, to put it at its highest in favour of the applicant, were made by Detectives Barrett and O'Connell. In particular, I cannot be satisfied that they were made on behalf of the prosecutor. The proceedings were taken against the respondent because he said in the letter of 3 December 1984 that he made the decision and made it "on behalf of the Director of Public Prosecutions". Inherent in this statement must be the fact that the Director had under s 9 and s 14 of the Director of Public Prosecutions Act 1983 made a decision to "take over" or "carry on" the proceedings. However, there was no evidence as to when the Director made this decision and in particular whether he had taken over and was carrying on the prosecution on 24 August 1984. Certainly there was no evidence that he had complied with his obligations under s 14(1) of that Act.
Furthermore, if I proceed to consider the nature of the expectation which the applicant may have had in consequence of their "promises", I am unable to accept that it can be said to be an expectation that the decision-maker would take certain steps. It was rather, in my opinion, an expectation that if the information was supplied and found acceptable, the detectives themselves, or their superior officers, would make a recommendation. If such was the case, and the recommendation was not made, any remedy which the applicant might conceivably have, would in my opinion be a remedy against the detectives, either in contract or by way of estoppel.
However, of greater significance is my finding that assuming he was entitled to the benefit of the rules, the applicant has not been denied such entitlement. On the evidence the decision-maker was aware of and took into account all of the matters upon which the applicant contended he would make representations. This finding must, to a significant extent, depend upon what the decision-maker was told by Sergeant Burton in the memorandum of 27 August 1984. Counsel for the applicant strongly contended that it was ambiguous, that it should be construed against the Federal Police, and that I should conclude that the decision-maker was not informed that the police accepted the applicant's contention that he had possession for personal use. It would follow, counsel argued, that the applicant had a reasonable expectation in the circumstances that he would be given the opportunity to inform the decision-maker of this very significant and relevant consideration.
However, a reasonable and in my view a proper construction to place on this memorandum, and in particular the first sentence of par 6 therof, is that the decision-maker was told that the police accepted that the applicant possessed the cocaine for his personal use.
The first sentence was in the following words:
"6. In view of the information forthcoming from Reid, his counsel intends contacting your office to ascertain your opinion as to whether Reid's matter can be determined in the Magistrate's Court on the basis that the cocaine was for his personal use."
This sentence must be read and understood in its context. The applicant's evidence was that he understood that the Magistrates Court dealt with matters where personal use was involved, whereas trafficking offences were heard in the Supreme Court. He gave the detectives information to the effect that he was contacted by McDevitt shortly after his arrival in this country and purchased from him five envelopes of cocaine for $160 per envelope. The memorandum states that "Reid's account of the events" was believable and thus, as I read the memorandum, the decision-maker can make his decision "on the basis that the cocaine was for his personal use". This was the crucial and most significant fact which in fairness the decisionmaker should know and I see no justification for reading the memorandum in a manner which would require a finding that he was not so aware. Moreover, in addition, there was nothing in the memorandum in any way critical of the applicant or of his evidence of the circumstances in which the offence occurred.
The applicant also contended that he was denied natural justice in that he was not given the opportunity to make representations to ensure the decision-maker was not only aware of the purpose of his possession but also aware that the detectives would recommend that the matter be dealt with in the Magistrates Court. He also complained, ultimately somewhat faintly, that he was denied the opportunity to inform the decision-maker that he would plead guilty to possession in the Magistrates Court if it was accepted that his possession was for personal use. However, in my opinion there was no such denial in these circumstances. In his affidavit Mr Mesiti said that at no time prior to the making of the decision had Mr Retalic made any written submissions to his office. There was evidence to the effect that he took into account the substance of the telephone conversation of Mr O'Halloran of 8 June, where possession was admitted, and was aware that Mr Retalic had alleged that the detectives would recommend that the matter remain in the Magistrates Court. In this regard he made inquiries of Sergeant Burton and ascertained that the "police had no views as to the court which would finally dispose of the matter".
In my opinion there was no element of unfairness in the manner in which the applicant had his request dealt with by the decision-maker. The latter was aware of and took into account the matters in respect of which he might have had a reasonable expectation, and in respect of which he might have made representations. Any representations on these topics could not, on the evidence, have advanced the applicant's case. There was nothing more, on the evidence, which could have been put to him.
It was also said that, irrespective of whether he had a "reasonable expectation", the applicant was entitled to have the decision-maker pay regard to all relevant considerations. Those considerations to which he is said not to have had regard are the factual matters set out above, namely, the purpose of possession, the proposed plea and the alleged recommendations. However, as the High Court said in R. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty. Ltd. (1979) 144 CLR 45 at 50:
"The general rule is that a discretion expressed without any qualification is unconfined except in so far as it is affected by limitations to be derived from the context and scope and purpose of the statute."
Subsequently Deane J. had this to say on the same topic in Sean Investments Pty. Ltd. v. MacKellar (1981) 38 ALR 363 at 375, namely, that a party affected by a decision is not
"entitled to make an exhaustive list of all the matters which a decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account".
In this case it might well be implied from s 235(6) that the decision-maker should regard as a relevant consideration the seriousness of the offence, normally whether the possession was for personal use or for trafficking. However, I am not prepared to find in this case that the alleged recommendation, or the proposed plea, are matters to which the decision-maker was obliged to give consideration. In any case the point is academic for, as I have earlier found, he was aware of and gave consideration to these two matters.
The end result is that even if the decision was pursuant to a power conferred by s 235(6) it would not be a decision which should be reviewed on any of the grounds put forward by the applicant. Having commented that the legislative jungle with which he was dealing abounded in "ambiguities, inconsistencies, incoherences and lacunae", a criticism which is not altogether justified in this matter, Bray C.J. at the page reference above-mentioned in City of Marion v. Lady Becker expressed the view that it was
"too much to hope that every judge who has had to consider these proceedings would choose to enter the jungle at the same point, still less to emerge from it by the same route".
I share his misgivings.
The final matter is the objection to the competency of these proceedings based on the contention that they were commenced out of time. In my view this contention is correct although counsel for the applicant strongly argued to the contrary. Section 11 of the Act relevantly provides that in relation to a decision, the terms of which were recorded in writing and set out in a document which is furnished to the applicant, the application shall be lodged within the prescribed period. The prescribed period in a matter such as the present, where there is no obligation to furnish reasons, is in accordance with s 11(3)(b)(iii), twenty-eight days after the day upon which a document setting out the terms of the decision is furnished to the applicant. The question which arises is whether the letter of 25 October 1984 was such a document. Counsel for the applicant contended that it was defective in that it did not state the date of the decision or the name of the decision-maker, which information was not supplied until the letter of 3 December 1984. However, in my opinion s 11 only requires that the terms of the decision be provided and the letter of 25 October 1984 complied with this requirement. If I be correct in this the period of twenty-eight days expired on 22 November 1984. The proceedings were not commenced until 7 December 1984. However, in view of the relatively short period of default and the fact that there was no contention that the decision-maker was prejudiced I would have been prepared to extend the time up to and including 7 December 1984. I take into account the fact that the applicant was residing in Sydney, and his legal adviser and the decision-maker were in Adelaide. Counsel for the respondent stated that he did not take the point that no formal application for an extension was before the court. However, in the circumstances that I dismiss the application the matter of an extension of time is academic.
In consequence the application is dismissed and I reserve for subsequent argument the question of costs.
ORDER
Orders accordingly
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