Saunders, B. v Brown, S.E

[1986] FCA 412

IN THE FEDERAL COURT OF AUSTR-	)
.VICTORIA DISTRICT REGISTRY	) NO. VG312 of 1986
GENERAL DIVISION	)

BEIWEEN_: BARRY SAUNDERS and GERARD

FRANCIS SHEEHAN

Applicants

AND: S.E. BROWN and PHILLIP

GEORGE CURRIE

Respondents

a: Jenkinson J.

--	PLACE	:	Melbourne
m:	8 September, 1986

REASONS FOR JUDGMENT

Motion for a stay of proceedings under decisions which

are the subjects of applications under the Administrative

Decisions (Judicial Review) Act 1977.

On 7 March 1985, the second named respondent, Phillip

Georqe Currie, who was a member of the Australian Federal Police,

and whom I shall call the informant, charged each applicant with

the commission of two indictable offences against the laws of the

Commonwealth : that he conspired with the other applicant and

other persons to defraud the Commonwealth, contrary to s.86(l)(e)

of the Crimes Act 1914; and that he conspired with the other

applicant and other persons to prevent or defeat the execution or

enforcement of the Income TgxAssessment Act 1936, contrary to

L .

s.86(l)(b) of the Crimes Act 1914. On 12 May 1986, the first

named respondent commenced, as a stipendiary magistrate, to

conduct the preliminary examination in respect of those charges

for which Division 1 of Part X of the Judiciarv Act 1903 and Part

V of the Masistrates (Summarv Proceedinss) Act 1975 make

provision. The evidence for the prosecution concluded after the

examination had proceeded on 23 days, of which 9 were occupied by

the opening of the informant S case by his counsel. The learned

magistrate thereupon, on 21 July 1986, formed and expressed the

opinion specified in s.56( l)(b) of the Masistrates (Summary

Proceedinss) Act 1975 that the evidence was sufficient to put each

applicant upon his trial for each of the indictable offences with

which he was charged and that the evidence given for the

prosecution raised a strong or probable presumption of the guilt

of each applicant in respect of those charges. Being of that

opinion, the learned magistrate complied with the requirement of

s.56(l)(b) of that Act, that in that event she say to each

applicant the words of caution therein set out. The preliminary

examination was then adjourned. Unless prevented by order of . this

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court, the learned magistrate will resume the examination tomorrow

and will require each applicant to decide whether to make any

answer to the charges, and thereafter to decide whether to give

evidence and whether to call evidence and whether to make an

unsworn statement.

. ._ . . I , . _ . I -

On 18 August 1986, there was filed in this court an

Originating document instituting applications by the applicants

for orders of review in respect of what were erroneously

designated in the singular as "the decision" of the learned

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magistrate, but were plainly four decisions. In relation to each

of the four informations, the decision in respect of which an

order of review is sought, is described in the originating

application as the "decision of the respondent that there was

sufficient evidence to require the first named respondent to

caution the applicants within the meaning of s.56(1) of the

Masistrates (Summary Proceedinssl Act 1975 in respect of each of

the charges against them". It is unnecessary for present purposes

to determine whether the decision so described is a "decision"

within the meaning of that word in the Administrative Decisions

(Judicial Review) Act 1977, or whether it is the decision to say

the words of caution prescribed by s.56(l)(b). not the formation

of the opinion therein specified, which may be the subject	of an
order of review.

Section 15 of the Administrative Decisions (Judicial

Review) Act 1977 provides:

" ( 1) The making of an application to the

-	Court under section 5 in relation to a decision does not affect the operation
of the decision or prevent the taking of
action to implement the decision but -
(a) the Court or a Judge may, by

order, on such conditions (if any)

as it or he thinks fit, suspend

the operation of the decision; and

(b)	the Court or a Judge may order, on
such conditions (if any) as it or
he thinks fit, a stay of all or

proceedings any under the

decision.

(2) The Court or a Judge may make an order

under sub-section (1) of its or his own

motion or on the application of the

person who made the application under

section 5."

4.

Each applicant moves for an order that all proceedings under each

decision in respect of which an order of review is sought be

stayed until the determination of the application for the order of

review. There are a number of grounds set out in the originating

application, but Mr. Larkins P.C., who appeared with Mr. Judd of

counsel for the applicants, undertook to show, and in my opinion

succeeded in showing, one serious question of law which is to be

tried on the hearing of each of the applications. In respect of

each of the four decisions it was, in my opinion, shown to be

arguable that the learned magistrate had misconceived one of the

constituent mental elements of the offence charge. This element

in each case was within the ambit of the conceptions expressed

compendiously by the word “dishonestly“. It is then a question

which way the balance lies relevant of discretionary

considerations for and against a stay.

If either applicant were forced in consequence of an

error of- law to make the elections which the learned magistrate’s decisions require to be made, that applicant would be deprived of

the advantage, which a person accused of an indictable offence

enjoys until a case on which a jury might properly convict him has

been given in evidence against him, of being subject to no

inducement deriving from legal considerations to make any public

~. ,._ - -- - .... I

answer to the charge. The practical value of that advantage

varies greatly according to the particular circumstances of each

case. In these cases, counsel did not attempt to take up the

substantial time which would have been required to make me

I 5.

familiar with the complicated and extensive chains of evidence

upon which the cases for the prosecution rest, nor did counsel for

the applicant specify any particular prejudice to either applicant

which would be occasioned by, or in consequence of circumstances

arising from, his falling under the necessity of deciding tomorrow

whether any, and what, evidentiary material should now be placed

before the magistrate by him or on his behalf, or under the necessity of placing that material before the magistrate in the immediate future.

There being a serious question to be tried, whether the

learned magistrate correctly conceived all of the constituent

elements of these offences, it would in my opinion be appropriate

that the court order of its own motion, if such an order were not

sought by an applicant for review, that the respondent magistrate

refrain until the determination of the applications or further

order from directing, except pursuant to s.57(l)(b) of the

Masistrates (Summary Proceedinss) Act 1975, upon a plea of guilty,

trial of either applicant for either of the indictable offences

- -

with which he is charged. Although committal for trial does not

bind the Attorney-General or the Director of Public Prosecutions,

it is an administrative decision of such gravity in its

consequences that in the circumstances here disclosed the learned

magistrate should not in my opinion proceed to the decision

whether to commit until the questions concerning tIieie"e1ements of

each offence have been further considered by this court. It may

be that upon further consideration at the hearing of these

applications this court will abstain from determining any of those

questions, but it cannot at this stage be seen that that will

6.

happen or even that there is a very strong probability that that

will happen. If committal must be deferred until the hearing of

these applications, what of those proceedings in the preliminary

examination which, if the magistrate's decisions in respect of

which orders of review are sought are not set aside, must procede

any decision whether or not to commit for trial?

Counsel for the informant submitted that, even if the

period which those proceedings will occupy be not lengthy, there

will be disruption, by the grant of a stay of those proceedings,

of the programme for the prosecution of these charges through the

courts of the State of Victoria. Not only will there be delay of

the planned progression of this prosecution, it was submitted, but

also consequential disruption and delay of the programme for the

prosecution of many other indictable offences within a curial

system overstrained by a volume of litigation beyond the capacity

of the system to manage expeditiously.

Judicial notice might - I need form no concluded opinion

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- be permitted to be taken so far as to enable me to accept-those

submissions as in some degree correct, but judicial notice could not be taken of the facts necessary to enable an evaluation to be made of the degree of disruption and of delay likely to be caused

by grant of the stay sought by the applicants, and there was no

evidence on; the 'subject. .- . .C . . L 7.

It was submitted on behalf of the informant that, in

many cases of application for an order of review in respect of a

decision made in the course of the taking of a preliminary

.. I 7.

examination in a proceeding for an indictable offence, the

applicant would regard the grant of a stay of proceedings under

the decision as the principal object of the application, and that

this court should be astute to discourage the misuse of

proceedings which the Administrative Decisions (Judicial Review)

&& authorises by leaning against the grant of such a stay of

pending committal proceedings. It was not suggested that these

particular applicants had been motivated to make these

applications by a desire to interrupt the preliminary examination, but it was suggested that the court should be reluctant to grant a stay because of the encouragement which a stay was likely to give

to others to utilize proceedings under the Administrative

Decisions (Judicial Review) Act as a means of delaying prosecution

of indictable offences against the laws of the Commonwealth.

I think it right that applications for stay of committal

proceedings should be carefully scrutinized and that the court

should strive to avoid giving encouragement to misuse of the

Administrative Decisions (Judicial Review) Act by persons accused

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of indictable offences against the laws of the Commonwealth; but

each application must be judged on its own facts. This is a case in which on the evidence before me the ends of justice will be

best served, as I think, by staying the preliminary examination

until the determination of the applications or further order. So

far as presently appears, the applicants seek bona fide to raise

for determination under the Administrative Decisions (Judicial

Review) Act difficult questions of law affecting the correct

definition of the offences with which they are charged. There is

nothing before me, either by evidence or judicial notice, to show

that any great harm to the public interest is likely to be caused

by preserving for the present what may in this proceeding under

that Act be found to be the applicants' rights to defer answer to

these charges.

The order on the motion will be that all proceedings,

other than proceedings by way of adjournment and proceedings

incidental to adjournment, in the preliminary examinations being

conducted by the first-nmaed respondent in relation to the

offences charged in the informations of which copies are exhibit

"A" to the affidavit of James Damian Elwood sworn and filed herein

on the 18th day of August, 1986 be stayed until the determination

of the applications herein or until further order, and that the

costs of each party of the motion be reserved.