Shen, D. v Tinker, R.A

[1989] FCA 69

Y

LIM	ITED DISTRIBUT	'ION
-	-

CATCHWORDS

ADMINISTRATIVE LAW Judlclal cevlew Declslon of the applicant for trial

- - - whether exceptional case.

JuStlCiS Act 1902 (NSW) - S.41

Customs Act 1901 (Cth)	- s.2336
Administratave Decislons	(Judicial Review) Act 1977 (Cth)
Lamb v. Moss (1986) 76 F.L.R.	296

Sankey v-itlam and O r s (1978) 142 C.L.R. 1

DAVID SHEN V. RAYMOND ALAN TINKER and ALAN THOMAS CULLEN

No. G1363 of 1	9	8	8
Davies J. 10 March 1989

Sydney

IN THE FEDERAL	COURT OF AUSTRALIA	)
I
NEW SOUTH WALES DISTRICT REGISTRY	)	No. G1363 of 1988
)
GENERAL DIVISION	)

BETWEEN:  DAViD SHEN

Appllcant

AND :  - RAYMOND ALAN TINKEX

Flcst Respcndeni

AND :  - ALAN THOMAS CULLEN

Second Respondent

CORAM :	Davles J.
-	DATE :	10 March 1989
Sydney	PLACE:

MINUTES OF ORDER

THE COURT ORDERS THAT:-

The application be dismissed with costs.

- NOTE : Settlement and entry of orders 1s dealt with In

Order 36 of the Federal Court Rules.

.

IN THE FEDERAL COURT OF AUSTRALIA	l
)
NEW SOUTH WALES DISTRICT REGISTXY	1 ?lo. C;:363 of 1 5 8 8
)
GENERAL DIVISION

BET'dESN:  >AVID SHEN

Applicant

AND :

- RAYMOND ALAN TINKER

First Responder.:

AND :

- ALAN THOMAS CULLEN

Second Responds-:

CORAM:	Davies J.
-	DATE :	10 March 1989
PLACE:	Sydney

REASONS FOR JUDGMENT

The applicant, David Shen, seeks orders of review with respect to decisions made by the second respondent, a magistrate, under sub-sections 41(2) and ( 6 1 of the Justices

Act - 1902 ( N S W ) . The applicant was the sublect of committal proceedings with respect to three offences, firstly

conspiracy to import narcotrc goods, secondly being

knowingly concerned in the importation by other persons of
prohlbited imports, to wit narcotlc goods, and thlrdly,

supplying a prohibited drug, to wit heroin. The flrst two

of these offences are offences under s.2338 of the Customs

Act - 1901 (Cth). The learned Magistrate, having heard the

evidence adduced for the prosecutlon, formed the opln~on that the evidence was capable of satlsfylng a lury beyond reasonable doubt that the appllcant had committed the

offences charged. He then proceeded In accordance wlth

sub-sectlons ( 4 ) and ( 5 ) of the Justlces Act and, dhen a;? the evldence for the prosecutlon and the evldence for t h e defence had been taken, he formed the opinion that a :ury would be llkely to convict the appllcant of the offences charged and he committed the appllcant for trial thereon.

On the hearing of thls applicatlon, M C I. Barker

Q . C . , with whom MC D. Fagan and M C J. Gleeson appeared f o r

the first respondent, formally submitted that the declslons
of the Magistrate were not decisions of an admrnlstratlve
character made under an enactment as defined in 5 . 3 of the
Administrative Decisions (Judicial Review) Act 1 9 7 7 (Cthl.

However, MC Barker conceded that I would follow the rullng

to the contrary given in Lamb v. e (1986) 7 6 F.L.R. 2 9 6 ,

as indeed I do. It would be inappropriate for me to discuss

this issue further.

Accepting that the Court has ]urisdict~on to review

decisions made by a New South Wales magistrate Ln the course

of committal proceedings under the Justices Act 1902 ( N S W ) ,

nevertheless, an order of review should	be made only in an
exceptional case. With respect	to the grant of declaratory

relief "that particular evidence is admissible or

inadmissible, or that the evidence led by an informant 1s

such to make out a prlma facie case", Gibbs A.C.J. said In

c

Sankey v. Whitlam & O r s (1978) 1 4 2 C.L.R. 1 a: pp.25-5:-

"In any case in which a declaration can be and

is sought on a question of evidence or

procedure, the circumstances must be most
exceptional to warrant tne orant sf rel;ef.
The power to make declaratory orders has
proved to be a valuable addltlcn to the

armoury of the law. The procedure ;n./ai.;ez 1s

simple and free fr3m technlcalltles; p r 3 p e r i y

used in an appropriate case the use o f the
power enables the salient issue to be

determined with the least possible delay and

expense. But the procedure is open to abuse,

particularly in criminal cases, and i f wronqly

used can cause the very evrls it 1s deslgned

to avoid. Applications for declarations as to

the admissibility of evidence may in some
cases be made by an accused person for
purposes of delay, o r by a prosecutor tg
impose an addltional burden on the accused,
but even when such an application 1s made
without any improper motive it is likely to be
dllatory in effect, to fragment the

proceedlngs and to detract from the effrclency

of the criminal process. I am not intending

to criticrze those concerned with the conduct

of Bourke v. Hamilton [l9771 1 N.S.W.L.R.	470,
or to show any drsrespect for the careful

have derived much assistance from them - when	~udgments delivered in that matter - indeed I
I say that that case provldes an example of
the way In whlch criminal proceedings may be needlessly protracted if they are interrupted by an applrcation for a declaration - in the
end the declaration sought was refused but the
proceedings had been delayed for the space of
almost a year. The present case ltself is
another regrettable example of the delay that can be caused by departures from the normal
course of procedure. For these reasons I
would respectfully endorse the observations of
Jacobs P. (as he then was) in Shapowloff v.
Dunn 119731 2 N.S.W.L.R. 4 6 8 , at p.470, that a
court will be reluctant to make declarations in a matter whlch lmpinges dlrectly upon the course of proceedlngs in a crlminal matter.
Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary In the interests of justice to make a declaratory order. Although these remarks may be no more than mere 'admrnistratlve cautions' (cf. Ibeneweka v.
Egbuna [l9641 1 W . L . R . 219, at p.224) I
nevertheless consider that if a ludge falled to glve proper weight to these matters it
could not be said that he had properly exercised his dlscretlon."
More recently, in stating the reasons of the Hl3h

court for refusing special leave to appeal against the decision of a Full Court of this Court ln O'Donovar. .d.. Vereker, Mason C.J. said:-

"It would require a most exceptional case for this Court to grant special leave to appeal from a decision of the. Federal Court reviewing

a decision of a magistrate to continue

commlttal proceedings. The undesirability of

fragmenting the criminal process 1s so
powerful a consideration that i t requires no

elaboration by us."

Like principles have been stated in - Lamb v. Moss, -

cited above, Seymour v. Attorney-General (1984) 57 A.L.R.

68, Souter v. Webb and Anor (1984) 54 A.L.R. 683, Wong V .

EVanS (1985) 59 A.L.R. 392, - Foord v. Whiddett and Anor

(1985) 60 A.L.R.	269, Murphy v. Director of Public
Prosecutions (1985) 60 A.L.R.	299 and Forsyth v. Rodda L
Anor

- (unreported, Wilcox J., 2 December 1988) and in Newby

v. Moodie & Anor (1987) 78 A.L.R. 603.

It follows from these authorities that it may be appropriate for the Court to make an order of review where,

for example, the decision or conduct sought to be reviewed

was beyond jurisdiction or an abuse of process ( s e e Bacon v.

Rose and Anor [l9721 2 N.S.W.L.R. 793), or the conduct

sought to be reviewed was contrary to that provided by
statute (see Willisee v. Willisee and Anor [l9741 2

.

N.S.W.L.R. 2 7 5 ) , or there 1s a discrete polnt of l a x the

early determination of which may conclude or assist the

resolution of the prosecution proceedings see, e . ? . , - Ii(L

T:mbers Pty Ltd and Anor ‘1. Attorney-General I T a s l 11963!

1 0 9 C.L.R. 5 i 4 , Sankey v. Whltlam, c l t e d above, W e ~ s c :.

Dlrector of Public PrOSecut~ons and Anor ‘SheFpd’d, 3 u r c h e r c

& Gummow JJ. delivered 21 December 1988) ) and She3herd ,’.

Griffiths & Anor (1985) 60 A . L . R . 176); but the Court 4111

not interfere with the ordinary conduct	of committal
proceedings unless exceptional cause for	doing so be shown.

In the present case, no such exceptional

circumstance has been shown, it being merely put that the

evidence before the learned Magistrate was not sufficient to

~ustify committal and that	it is desirable to intervene at
this stage as the trial may be	a lengthy and expenslve one.

such circumstances do not constitute exceptional
c~rcumstances lustlfying an order of ~udlcial review with

respect to committal proceedings.

I do not propose to consider in any detail the many points made by M r J. Coombs Q.C.,	with whom M C G. Ellis
appeared for the applicant, in support of his submissions
that the Magistrate‘s decisions under sub-sections	( 2 ) and

( 6 ) of S.41 of the Justices Act were in error. The task of

deciding whether or n o t the evidence was capable of

satisfying a jury beyond reasonable doubt that the accused

had committed indictable offences and whether or not a l u r y
would be likely or not likely to convict the accused of such

offences was conferred upon the Magistrate, who cond~=:ed

the committal, not upon this Court.

At the very least, there was substantial evidence

before the Maglstrate of the commission by the appllcanr cf the crimes with which he had been charged. Fl.;e p e r s o n s at

least were alleged to be involved i n a conspiracy to	import
and dispose of heroin. Those five persons were the

applicant David Shen, a M C To, a M C Sze, a M C Chen and a Yr

Rueda. To flew into Sydney from Hong Kong on 11 April 1988

Sze, Chen and Rueda flew into Sydney from Hong Kong, via

Thailand, on 14 April 1988. The applicant had TO’S Hong

Kong phone number and address recorded in a digital diary and address book. This and other evidence tendered to prove that the applicant and To knew each other or knew of each

other prior to To’s arrival in Sydney. To took	a room at
the Regent Hotel.	On the afternoon of 14 April, there was a

phone call from To’s room at the Regent Hotel to a flat in

Neutral Bay which was controlled by	or visited by the
appllcant.

On 15 April, the heroin was in a suitcase in a room

in the Regent Hotel occupied	by one of the accused. At
about 1 2 : 4 0 p.m.,	the applicant was seen in a lounge at the

Regent. Chen, To and S z e were nearby. Between about 12:40

and 12:55 p.m., there were nods or signals passing between

all these persons . At about 1:00 p.m., To went to the t h i r d

floor of the Regent Hotel. He there received the suitcase

containing the heroin. He took i t to his room on the 9th

. floor. Repackaging of the heroin into smaller parcels commenced. To, Chen, Sze and Rueda were subsequentiy arrested in the room.

The applicant had left the Regent Rote1 a t 3 ~ 2 ~ :

1:26 p.m.. He was subsequentiy seen drlving acDbri s’_:ee:s

in the vlcinrty of the Regent Hotel. Between ::Os and 3 : 1 3

p . m . ,	the applicant was seated in a motor vehicle parke?.
close by the Regent Hotel. He kept	the engine of the
vehicle running and kept looking around mainly	in the

dlrectlon of the Regent Hotel. At 3:15 p.m., he was interviewed by polrce officers. He told a number of untruths and he was arrested.

That was the substance of the evidence against applicant together with a taped conversation between tze

twD z f

the alleged consplrators in which they spoke of a person	b y
the name of David as belng connected with their	ac:ivitles.

M r Coombs attempted to interest me in his

submission that there were so many explanations for the

applicant’s actions in and sbout the Regent Hotel 3n 1 5

April and for his prior association with To that a ~ u d g e at

the trial would rule that the evidence of what the other

alleged conspirators did in his absence was not admissible

evidence against him and that, even if the evidence were

admitted, a jury would necessarily acquit the applicant as
the prosecution would be unable to exclude the possiblllty
of the applicant‘s innocence. M r Coombs challenged passages

- a -

.

rn the Magistrate’s rullng and submltted that :ne case

against the applicant was based o n clrcumstances xhlcr. *er+

consistent with rnnocence.

I have come to the vlew that l t d o ~ , l d n c c c e

appropriate for me to discuss the detalled	submlsslzns *hlr?
MC Coombs put.	To do so, would be to undertake the t s s k cf

judicial review in circumstances where ludlclal revlejr 1s

not appropriate.

In this case, the Magistrate was actlng wlthln

~urisdictron and	in accordance with the procedure laid down
by the Justzces Act.	No dlscrete questlon of law,
particularly of federal law,	1 s raised for consideration.
The Magistrate expressed the principles of	law to be applled

and there was substantial evidence tending to show
involvement of the applicant in a criminal conspiracy to
import and distribute heroin. The principal lssue whlch ~r
Coombs sought to litigate, namely whether, on the evldence
before him, the Maglstrate ought to have concluded that a
~ u r y could and would be likely to convict are not issues

which this Court will determine in ludlcial review

proceedings in the absence of a special reason. There is

nothing of an exceptional nature ln this case which would

~ustify the making of an order by way of Judlcial revlew.

For these reasons, the application must be

dismissed with costs.

I certify that this and t h e 8 precedlng pages are a true copy of the Reasons for Judgment herein of the Honourable M C Justice Davies.

Date:  1 0 March 1989

Counsel	for	the applrcant:	M C J. Coombs Q . C .
with M r G. Elils

Solicitors for the applicant:	W.G. McNaliy 6 CO.
Counsel for the respondents:	M C I. Barker Q.C.
wlth M r D. Fagan and
M r J. Gleeson
Solicitor for the
first respondent:	Director of Public Prosecutions
Solicitor for the
second respondent:	H.K. Roberts,
Crown Sollcltor

Date of hearing: 16 February 1989