Reid, Douglas Edward v Attorney-General of the Commonwealth of Australia

[1995] FCA 974

CATCHWORDS

ADMINISTRATIVE LAW - Review pursuant to the Administrative Decisions (Judicial Review) Act 1977 - interlocutory injunction - decisions relating to the taking of evidence outside Australia for use in pending committal proceedings - request made by the Attorney-General (Cth) pursuant to the Mutual Assistance in Criminal Matters Act 1987 for the taking of evidence in the USA - action taken by the Director of Public Prosecutions (Cth) to obtain that evidence - interaction between the Mutual Assistance in Criminal Matters Act 1987 and the Foreign Evidence Act 1994 discussed

Foreign Evidence Act 1994 Sections 7 9 10 18 20 21 22 24 27
Mutual Assistance in Criminal Matters Act 1987 Sections 10 12

Magna Alloys & Research Pty Ltd v Coffey [1981] VR 23

DOUGLAS EDWARD REID v ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA AND ANOTHER
No VG 826 of 1995

NORTHROP  J
MELBOURNE
14 NOVEMBER 1995

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY           No VG 826 of 1995

GENERAL DIVISION

B E T W E E N :

DOUGLAS EDWARD REID
  Applicant

A N D :

ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA AND ANOTHER
  Respondents

COURT:    NORTHROP

PLACE:    MELBOURNE

DATE:     14 NOVEMBER 1995

REASONS FOR JUDGMENT

Douglas Edward Reid ("the Applicant") has been charged with a large number of criminal offences under Commonwealth and State laws. Dates for the commencement of committal hearings before the Magistrates Court at Melbourne have been fixed from time to time but the hearings have been adjourned. The prosecutor, the Director of Public Prosecutions for the Commonwealth of Australia ("the DPP") has been trying to obtain evidence from persons outside Australia for the purpose being led at the committal proceedings. In order to achieve this, the DPP sought the assistance of the Attorney-General of the Commonwealth of Australia ("the AG") to make a "request" under section 12 of the Mutual Assistance in Criminal Matters Act 1987 ("the Mutual Assistance Act").  That section provides:

"12. The Attorney-General may, in his or her discretion, request an appropriate authority of a foreign country to arrange for:

(a)evidence to be taken in the foreign country; or

(b)documents or other articles in the foreign country to be produced;

for the purposes of a proceeding in relation to a criminal  matter in Australia."

Reference is made also to section 10 of the Mutual Assistance Act which provides:

"10. Requests by Australia for international assistance in criminal matters may be made by the Attorney-General."

On 14 June 1995, a delegate of the AG made the request in writing as sought by the DPP.  The request is contained in a very lengthy document and will be referred to as "the Request".  The Request states that it has been framed in conformity with the draft proposed "Treaty between the Government of Australia and the Government of the United States of America on Mutual Assistance in Criminal Matters".  The Request is directed to the Competent Authorities of the United States of America.  For present purposes, it is sufficient to say that the Request is for the DPP by its legal representatives and the Applicant and his legal representatives to attend in the USA to examine identified persons on oath for the purpose of obtaining evidence, both oral and documentary, to be reduced to a physical form and transmitted to Australia to enable the DPP to attempt to present that material in the committal proceedings pursuant to the provisions of the Foreign Evidence Act 1994 (Cth).

Following the making of the Request, the DPP has been taking action to obtain the evidence and for that purpose has been making arrangements for the taking of evidence in the USA in November 1995 and to assist the Applicant financially to enable him and his legal advisers to be present in the USA to attend the taking of that evidence and to cross-examine the proposed witnesses.  Disputes have arisen between the DPP and the Applicant concerning the amount of the financial assistance to be given to the Applicant.

On 18 October 1995 the Applicant commenced proceedings in this Court under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") against the AG and the DPP.  The Applicant sought to review the decision of the AG to make the Request and the decisions and conduct of the DPP in implementing the Request.  On the same day the Applicant gave notice that he would move the Court on 24 October 1995 for an interim injunction in the following form:

"That, until further order, the Second Respondent be restrained from taking any further step towards obtaining testimony from the overseas witnesses (as set out in the Application herein) unless and until:

(i)the Second Respondent agrees to pay the costs of the Applicant being represented for such testimony, such costs to include:

(a)travel, accommodation and sustenance for the Applicant's solicitor and counsel;

(b)costs on Federal Court scale to commence the day prior to the departure and to conclude the
day after return;

(c)five days' preparation, or in lieu thereof, the costs of the Applicant's travel, accommodation and sustenance for the duration of the hearing in respect of the overseas witnesses;

in default of agreement, such costs to be taxed under Order 62 of the Federal Court Rules.

(ii)alternatively to (i) hereof, the Second Respondent makes application to a superior court under Part 2 of the Foreign Evidence Act to have the evidence of the overseas witnesses taken."

By notices of objection to competency each dated 23 October 1995 the AG and the DPP each objected to the jurisdiction of the Court to hear and determine the application on the grounds that the decisions and conduct sought to be reviewed did not come within the Judicial Review Act.  At the same time the AG and the DPP each gave notice of a motion to be heard on 24 October 1995 that the application be struck out on the ground that it disclosed no reasonable cause of action.  In addition the DPP relied upon the ground that the application is vexatious and an abuse of the process of the Court.

The above motions came before the Court on the first directions hearing on 24 October.  The parties requested the Court to proceed with the hearing of the Applicant's motion for an interim injunction and to defer hearing the motions by the AG and the DPP.  The Court acceded to that request, although in hindsight this made its task more difficult since the strength of the Applicant's case is a relevant factor in exercising its discretion on the injunction issue.
     Submissions on this issue were made on 24 and 25 October.  At the conclusion of the submissions the Court refused the motion and announced it would give its reasons as soon as possible but that the time limited for any application or leave to appeal from the order made would commence to run from the time its reasons were published.  Consequential interlocutory orders were made.  These are the reasons of the Court for refusing to make the interim injunction.

The motion is for interlocutory relief heard in circumstances where a decision was sought as early as possible.  As in most cases where interlocutory relief is sought, the Court has not been able to investigate the facts and the law to be applied as fully as would be done at the final hearing.  In these respects, no final opinion has been formed on the issues raised in submissions.

It is necessary to remember also that the Court has the power to grant interlocutory or interim injunctions.  The power is unfettered but must be exercised judicially.  Many authorities have expressed views on how the power is to be exercised with the result that normally the Court considers the matter under two headings namely whether a serious question to be tried has been raised and if so whether on the balance of convenience the order should be made.  This is a matter of methodology and is a useful exercise but the Court must exercise the power conferred upon it having regard to all relevant material.  A very helpful approach is illustrated by a passage from the judgment of the Full Court of Victoria, Young CJ, Starke and Marks JJ in Magna Alloys & Research Pty Ltd v Coffey [1981] VR 23 at 28. In this passage reference is made to a "chance of success". In the light of later authorities the current approach is whether "a serious question is raised". Subject to that qualification the passage has application today and was applied in refusing the motion. The passage is as follows:

"In Slater Walker Superannuation Pty Ltd v Great Boulder Gold Mines Ltd, [1979] VR 107, in considering a similar problem Lush J said, at [1979] VR p110: "The weight to be given to the various considerations shown by the authorities to be relevant will vary from case to case. All the authorities say in one way or another that the plaintiff must show he has a chance of success before he will be granted an interlocutory injunction. The authorities refer to the use of the injunction for the purpose of maintaining the status quo or maintaining a state of affairs which is on the balance of convenience appropriate to be maintained until the trial.  They refer to avoiding irreparable harm to the plaintiff.  There will be situations in which the plaintiff cannot expect to be granted an injunction unless he can show that he can prove positively the existence of his rights and the infringement of them.  There will be other situations in which though the plaintiff's proof of his rights or the infringement of them is not strong, an injunction may be granted because to withhold it would do the plaintiff irreparable harm, while to grant it would not greatly injure the defendant.  The possible variety of situations is unlimited."

We would, with respect, adopt that passage as a correct and useful statement of the law."

When reference is made to the form of order sought by the Applicant, it is apparent that the Applicant is concerned with the amount of money to be given to him by the DPP to enable  him to be adequately represented in the proceedings in the USA.  This conclusion is supported by a reference to the affidavit material before the Court.  In the Request, reference is made to the fact that the DPP will provide financial assistance to the Applicant.  The issue between the parties is what is adequate financial assistance.  It would seem that if the financial assistance is sufficiently adequate, the Applicant would not be concerned, at this stage, with the validity of the Request.  In considering whether there is a serious question to be tried, I put aside any consideration of financial assistance.

In the present matter, there is no doubt, the committal proceedings pending in the Magistrates Court constitute "a proceeding in relation to a criminal matter in Australia" within the meaning of section 12 of the Mutual Assistance Act.  A reference to the contents of the Request indicates that prima facie there was ample material considered by the AG to justify the making of the Request.  The attack made on the validity of the Request was based essentially on what the AG did not consider and, in particular, the proper construction of the Foreign Evidence Act and the fragmentation action of existing proceedings in criminal matters in Australia.

It is well known that many difficulties arise where a party to a legal proceeding, whether criminal or civil, seeks to obtain evidence for the purpose of those proceedings from a person outside Australia. These difficulties come within two broad categories, one, the obtaining of that evidence outside Australia and, two, the admissibility of evidence when it is obtained. On its face section 12 of the Mutual Assistance Act is directed to easing the problems of obtaining the evidence outside of Australia.  The provisions of that Act are not directed to the admissibility of evidence in the criminal proceedings in Australia.

Many State laws make provision with respect to the admissibility of evidence obtained outside Australia in civil and criminal proceedings in Australia.  Those provisions need not be considered.

The Evidence Act 1905 (Cth), by Part IIIB, provided a method by which a Court could make an order for the obtaining of evidence outside Australia. The relevant provisions of the Foreign Evidence Act came into operation on 9 April 1994.  It repealed Part IIIB of the Evidence Act 1905 but the Foreign Evidence (Transitional Provisions and Consequential Amendments) Act 1994 applied to enable the repealed provisions to apply to proceedings which had begun before that date. In broad terms, the provisions of Part 2 of the Foreign Evidence Act were similar to the repealed Part IIIB.

Part 2 of the Foreign Evidence Act is headed "EXAMINATION OF WITNESSES ABROAD" and came into operation on 9 April 1994. Under that Part by section 7 a Superior Court as defined in subsection 3(1) is empowered to make an order in any proceeding before it for the examination of a person outside Australia. The Part provides safeguards with respect to the making of the order and the taking of evidence. The Part, by section 9, empowers the Superior Court to permit the evidence so obtained, subject to safeguards, to be admitted in evidence in the proceeding in which the order had been made. Under section 10, a Supreme Court of a State or Territory, on the application of a party to a proceeding before an inferior court in that State or Territory, is empowered to make an order of the kind referred to in section 7. Section 12 contains provisions similar to those contained in section 8 with respect to evidence so obtained. Specific reference is made to section 18 which is within Part 2. That section provides:

"18. This Part is not intended to exclude or limit the operation of any Australian law, or of any rule or regulation made under such a law, that provides for the examination of witnesses outside Australia for the purpose of a proceeding in Australia."

On its face, this section appears to prevent Part 2 from excluding or limiting the operation of section 12 of the Mutual Assistance Act.

Part 3 of the Foreign Evidence Act is headed "USE OF FOREIGN MATERIAL IN CRIMINAL AND RELATED CIVIL PROCEEDINGS". Under section 20, the Part applies to a proceeding in Australia that is a criminal proceeding for an offence or a related civil proceeding. On its face, this section applies to the pending proceedings in the Magistrates Court. Section 21 is set out:

"21. This Part applies to testimony, and any exhibit annexed to such testimony, obtained as a result of a request made by or on behalf of the Attorney-General to a foreign country for the testimony of a person, and any exhibit annexed to such testimony, to be made available."

The use of the word "testimony" in this section is unusual. That word is not in common use in Australian Courts. Normally it is the word used to describe the evidence of a witness given orally in Court, but even here, the word evidence is normally used. In section 23, the word testimony appears to be used in its traditional sense, see subsection 23(1) but a slightly different meaning could be given to it in subsection 23(2) where it appears to be used to connote a written document. Similarly in section 22 the word "testimony" is used to describe a written document in which the evidence, oral or otherwise, has been recorded. It is not necessary to take this matter further in these reasons. What is of importance is that on its face section 21 appears to have application to evidence and exhibits obtained pursuant to the Request. In this respect, the wording of section 12 of the Mutual Assistance Act bears a marked similarity to the wording of section 21. The use of the word "obtained" in section 21 is not to be limited to material in existence at the time a request is made but includes material obtained pursuant to a request, compare what was said in The State of New South Wales v The Commonwealth of Australia (1990) 169 CLR 482 per Mason CJ, Brennan, Dawson, Toohey, Gaudron and McHugh JJ at 497-8.

Section 24 of the Foreign Evidence Act enables foreign material, which is defined to mean the testimony of a person that was obtained as a result of a request of a kind referred to in section 21 and complies with the requirements of section 22 including any exhibit annexed to that testimony, to be adduced in a proceeding to which Part 3 applies. Safeguards with respect to the admissibility of that material is provided by sections 22 and 25. Section 27 is set out in full:

"27. This Part does not limit the ways in which a matter may be proved, or evidence may be adduced, under this Act (other than this Part) or any other Australian law."

This section, on its face, preserves other laws relating to the admissibility into evidence of material in a proceeding including admissibility under Part 2 of the Foreign Evidence Act and under State law.

A reference to the Request makes it clear that the DPP is proposing to rely on Part 3 of the Foreign Evidence Act to tender as evidence in the pending committal proceedings material provided pursuant to the Request.

It is necessary now to refer to the submissions made on behalf of the Applicant.  Those submissions are to be considered in the circumstances where, for present purposes, it is assumed that the Request constitutes a decision to which the Judicial Review Act applies and that the application should not be struck out as disclosing no cause of action or as being an abuse of process of the Court.

Counsel for the Applicant did not contend that the AG does not have power to make a request under section 12 of the Mutual Assistance Act of the type contained in the Request. The essence of the two main submissions made were that the AG did not have power to make such a request for the express purpose of seeking to rely on Part 3 of the Foreign Evidence Act to make material obtained pursuant to the request admissible in criminal proceedings pending in Australia. Alternatively, it was contended that having regard to the provisions of Part 2 of the Foreign Evidence Act such a request was invalid and that the AG had not considered the consequences of the Request as made and thus the Request was invalid.

As appears from the outline of submissions relied on by counsel for the Applicant and from the oral submissions, the arguments in support of these two contentions were expressed in a number of different ways.  It was submitted that the Request was based on a hybrid of the Mutual Assistance Act and Part 3 of the Foreign Evidence Act  neither of which contains an identifiable procedure for taking evidence overseas.  This assertion may be correct but this does not affect the validity of the exercise of the power to make a request under the Mutual Assistance Act. Section 12 of that Act is directed to solving the problem of obtaining evidence of persons outside Australia. It is not directed to the separate but related problem of enabling evidence so obtained to be admitted in evidence in criminal proceedings in Australia. Part 3 of the Foreign Evidence Act is directed to this second problem. The Request contains much material directed to this second problem. The material refers to the provisions of Part 3, the need to ensure that the evidence obtained in the USA complies with the safeguards contained in Part 3, that the Applicant and his legal advisers be able to attend at the taking of that evidence and to cross-examine the witnesses giving the testimony. The fact that the Request refers to matters relating to the admissibility of the material in the committal proceedings in Australia does not detract from the validity of the request for assistance in a criminal matter. For similar reasons, any reference to requirements necessary to make material so obtained admissible under State law would not affect the validity of a request under section 12 of the Mutual Assistance Act.

An aspect of this contention was that Part 2 and Part 3 of the Foreign Evidence Act form a code in the sense that the provisions of Part 3 have application only with respect to material obtained pursuant to Part 2. It is difficult to accept this submission having regard to section 27.

Reference is made to section 21 of the Foreign Evidence Act. There are very strong grounds for concluding that this section makes it clear that Part 3 applies with respect to material obtained pursuant to a request under section 12 of the Mutual Assistance Act.  With the exception of the word "testimony" the two sections are remarkably similar and complementary.  The use of the word testimony does not detract from this conclusion.

The second main contention was based on the exercise of the power assuming the power to make the Request existed. It was argued that the power conferred by section 12 of the Mutual Assistance Act was executive and the exercise of that power at a time when criminal proceedings were pending with respect to material to be used in these proceedings interfered with the administration of the Court, removed the protection given to an accused person of the provisions of Part 2 of the Foreign Evidence Act and fragmented the criminal justice system and that the AG had not given consideration to these matters before making the Request and thus the decision constituted by the Request was rendered invalid.

These issues go to the exercise of the power and to that extent the Applicant sought to rely upon paragraph 5(1)(e) of the Judicial Review Act namely that the making on the decision was an improper exercise of the power conferred by section 12 of the Mutual Assistance Act. In this regard the Applicant relied on the provisions of subsection 5(2) of the Judicial Review Act and in particular paragraph 5(2)(b) namely that the AG had failed to take relevant considerations into account in the exercise of the power.  The main consideration related to the fragmentation of the criminal proceedings and the failure to consider the question of financial assistance to the Applicant.

Insofar as these considerations were material, there is no suggestion that the AG did not take them into account. It was not suggested the AG is required to give a statement of his reasons for making the Request and in these circumstances the Applicant is compelled to turn to paragraph 5(2)(g) of the Judicial Review Act, namely that the exercise of the power was so unreasonable that no reasonable person could have so exercised the power.

In my opinion, the strength of these submissions is very weak. In making an order for the examination of witnesses abroad under Part 2 of the Foreign Evidence Act, the Superior Court, whether acting under section 7 or 10, is required to give directions of the kind referred to in section 8. Division 3 of Part 2 then contains provisions relating to the use of material so obtained in the proceedings within Australia. See also the provisions of section 15. It was contended that these safeguards to a person charged with an offence disappeared if the provisions of section 12 of the Mutual Assistance Act applied to avoid the requirements of Part 2. In my opinion, the provisions of section 18 do not permit these submissions to be accepted. Further, the safeguards provided by Part 3 of the Foreign Evidence Act apply to material obtained pursuant to the Request.

In my opinion, there is no substance in the submissions based upon fragmentation of criminal proceedings. A Director of Public Prosecutions is entitled to seek further evidence during the committal proceedings and even after a committal for trial. I see nothing to prevent the AG granting a request under section 12 of the Mutual Assistance Act to enable the DPP to seek the material referred to in the Request.  The terms of the Request make it clear that the DPP has sought provisions which would satisfy the safeguards mentioned in the Foreign Evidence Act.  In addition, the material before the Court makes it clear that financial assistance is being offered to the Applicant.  It is not for this Court to consider whether the offer is adequate or not nor to make orders of the kind requested by the Applicant in his motion.

Having come to the conclusion that the case for the Applicant is at most very weak, I turn to consider the balance of convenience.  The offences alleged occurred a long time ago.  Complicated matters of fact arise.  It is important that evidence be obtained from persons outside Australia.  Arrangements have been made for the evidence to be taken in November.  The Applicant has had knowledge for some time that a procedure such as this would be sought.  He might not have had full knowledge of the details of the Request until more recently, nevertheless he has the opportunity to participate in the proceedings in the USA.  Any material so obtained will not be made admissible in proceedings in Australia as of course.  Objection to admissibility can be taken at the committal hearing.  The safeguards remain in favour of the Applicant.  I could see no reason why the interlocutory order sought should be granted.  Therefore, the motion was refused.

I certify that this and the preceding sixteen (16) pages are a true copy of the Reasons for Judgment of The Honourable Justice R.M. Northrop.

Associate:

Date:

ATTACHMENT

Counsel for the Applicant:       Mr B. Walters

Solicitor for the Applicant:     Coadys

Counsel for the 1st Respondent:   Mr M.S. Weinberg QC and
  Mr A.L. Cavanough

Solicitor for the 1st Respondent: Australian Government Solicitor

Counsel for the 2nd Respondent:   Mr M.S. Weinberg QC and
  Mrs F.P. Hampel

Solicitor for the 2nd Respondent: Commonwealth Director of Public Prosecutions

Date of Hearing:                 25 October 1995