Shepherd v Griffiths

[1985] FCA 149

Re: ROBERT EDMUND SHEPHERD
And: IAN MICHAEL GRIFFITHS and LOIS NORMA JONES
No. VG329 of 1984
Administrative Law - Criminal Evidence - Words and Phrases 60 ALR 176 / 2 FCR
44

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson J.(1)

CATCHWORDS

Administrative Law - Judicial Review - Committal proceeding - Evidence - Ruling on construction of a statute relevant to admissibility of evidence "conduct for the purpose of making a decision" concerning admission of the evidence - Discretion whether to review conduct.

Telecommunications (Interception) Act 1979, s.7(6) Administrative Decisions (Judicial Review) Act 1977, ss. 6(1), 16(2)

Administrative Law - Judicial review - Conduct of magistrate at a preliminary examination - Magistrate's oral finding that the examination was not "a proceeding . . . by way of a prosecution" within s 7(6)(c) of the Telecommunications (Interception) Act 1979 (Cth) - No disputed facts - Public interest in construing the relevant section - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 6(1), 16(2).

Criminal Evidence - Preliminary examination taken by magistrate - Evidence in relation to telephone conversations intercepted and recorded - Admissibility of, pursuant to s 7(6)(c) of the Telecommunications (Interception) Act 1979 - Whether a "proceeding . . . by way of a prosecution" - Telecommunications (Interception) Act 1979, ss 3(1), 6, 7(6)(c), 9, 10, 11, 20, 21 - Crimes Act 1914 (Cth), ss 12A, 42 - Crimes Act 1958 (Vic), s 351 - Magistrates (Summary Proceedings) Act 1975 (Vic), Pt V - Justices Act 1902 (NSW), Pt IV, Div I - Judiciary Act 1903 (Cth), ss 68(1)(b), 68(2)(b), 69.

Words and Phrases - "A proceeding . . . by way of a prosecution" - Whether includes magistrate's preliminary examination taken upon the laying of an information - Telecommunications (Interception) Act 1979 (Cth).

HEADNOTE

At a preliminary examination taken by a magistrate with respect to certain informations laid, counsel for the applicant indicated intention to cause recordings of certain telephone conversations to be played as part of the opening of his evidence, and to adduce evidence that the interception of communications passing over a telecommunications system which the recordings had constituted had been done in pursuance of a warrant granted under s 20 of the Telecommunications (Interception) Act 1979 (the Act). The second respondent argued that the preliminary examination which the magistrate was then sitting to take, did not answer the description in s 7(6)(c) of the Act "a proceeding . . . by way of a prosecution" and that for that reason, evidence of the recorded telephone conversation sought to be adduced by counsel for the applicant could not be received by the magistrate. Upon application for an order of review of the decision and conduct of the magistrate in upholding that argument,

Held: (1) The conduct of the magistrate during the preliminary investigation in orally communicating to counsel for the parties of his conclusion that the preliminary investigation did not fall within the meaning of the expression "a proceeding . . . by way of a prosecution" in s 7(6)(c) of the Act was conduct reviewable in pursuance of s 6(1) of the Administrative Decisions (Judicial Review) Act 1977 (the Judicial Review Act). The court would exercise its discretionary power under the Judicial Review Act to review such conduct, involving the construction of s 7(6)(c) of the Act, and a determination as to its applicability to the preliminary examination, particularly as no disputed or doubtful facts were to be established in the process of review, and further as there existed a public interest in resolving the question of construction as soon as conveniently may be, it being likely that that question would soon arise in other committal proceedings.

Hilton v. Wells (1985) 59 ALJR 396; Lamb v. Moss (1983) 49 ALR 533; Clyne v. Scott (1983) 52 ALR 405; Souter v. Webb (1984) 54 ALR 683; Young v. Quin (1984) 56 ALR 168; Seymour v. A-G (Cth) (1984) 4 FCR 498; Barton v. The Queen (1980) 147 CLR 75, referred to.

(2) Proceedings in the nature of committal proceedings such as the proceedings here, involving a preliminary investigation taken by a magistrate, the first respondent, in respect of a certain indictable offence with which the second respondent was charged, is a proceeding by way of a prosecution for an offence against the law of the Commonwealth within the meaning of s 7(6)(c) of the Act.

Summers v. Cosgriff (1979) VR 564; Mohammed Amin v. Jogendra Kumar Bannerjee (1947) AC 322; Sankey v. Whitlam (1978) 142 CLR 1; Wren v. Hardy (1951) VLR 256; Yates v. The Queen (1885) 14 QBD 648; Pearce v. Cocchiaro (1977) 137 CLR 600, referred to.

HEARING

Melbourne, 1985, April 10, 17. #DATE 17:4:1985
APPLICATION

Application for an order of review of a decision and conduct of a magistrate during the course of a preliminary investigation in relation to the admissibility of evidence under the Telecommunications (Interception) Act 1979.

C N Jessup and B J King, for the applicant.

B M Young, for the second respondent.

Cur adv vult

Solicitors for the applicant: Director of Public Prosecutions.

Solicitors for the second respondent: Campbell, Grace & Co.

GFV

ORDER

Declare that the preliminary investigation which the first respondent sat on 19 and 20 November 1984 to take in respect of the indictable offence with which the second respondent was charged by the information of which exhibit KCC 1 to the affidavit of Kevin Charles Chalker sworn the 20th day of December 1984 and filed herein is a copy is a proceeding by way of a prosecution for an offence against the law of the Commonwealth within the meaning of s.7(6)(c) of the Telecommunications (Interception) Act 1979.

Orders accordingly

JUDGE1

Application for an order of review.

The applicant was at relevant times a sergeant of the Australian Federal Police who on 21 April 1983 laid an information that the second respondent, Lois Norma Jones, had conspired in the State of Victoria with others to defeat the course of justice in relation to the judicial power of the Commonwealth, contrary to s.42 of the Crimes Act 1914 (C'wlth). That section provides:

"42. Any person who conspires with another to obstruct, prevent, pervert, or defeat, the course of justice in relation to the judicial power of the Commonwealth, shall be guilty of an indictable offence."

On 19 November 1984 the first respondent, a stipendiary magistrate in that State, commenced at Melbourne to take the preliminary examination with respect to that information and the informations laid against those others. Counsel for the applicant was opening the evidence to be adduced when he indicated his intention to cause recordings of certain telephone conversations to be played, as part of his opening of the evidence, in the court room where the examination was taking place. The material by means of which the conversations could be heard, called tapes, would be tendered in evidence, counsel had informed the magistrate, and evidence would be adduced, counsel had said, that the interception of communications passing over a telecommunications system which the recording of the conversations had constituted had been done in pursuance of a warrant granted under s.20 of the Telecommunications (Interception) Act 1979. Counsel had also indicated that the conversations constituted evidence tending to prove the commission of the offence charged. Thereupon counsel for the second respondent raised the question whether "the activity of playing tapes in an opening infringes the provisions of the legislation". The magistrate indicated his willingness to hear counsel for the second respondent on that question. It was, however, not directly to that question that submissions were thereafter addressed. Counsel for the several parties addressed their submissions to the question whether the proceeding in which the magistrate was engaged - the "preliminary hearing" to which reference is made in Part V of the Magistrates (Summary Proceedings) Act 1975 (Vic.) and to which reference is intended by s.68(1)(b) and s.68(2)(b) of the Judiciary Act 1903 (Cwlth) - was "a proceeding ...... by way of a prosecution", within the meaning of that phrase in s.7(6)(c) of the Telecommunications (Interception) Act 1979.

1. Section 7 of that Act provides:
   
   

"7. (1) A person shall not -

(a) intercept;

(b) authorize, suffer or permit another person to intercept; or

(c) do any act or thing that will enable him or another person to intercept,

a communication passing over a telecommunications system.

Penalty: $5,000 or imprisonment for 2 years.

(2) Sub-section (1) does not apply to or in relation to -

(a) an act or thing done by an officer of the Commission in the course of his duties for or in connection with -

(i) the installation of any line, or the installation of any apparatus or equipment, used or intended for use in connection with a telecommunications service or the operation or maintenance of a telecommunications system; or

(ii) the identifying or tracing of any person who has contravened, or is suspected of having contravened or being likely to contravene, a provision of the Telecommunications Act 1975 or of any regulation or by-law in force under that Act; or

(b) the interception of a communication in pursuance of a warrant.

(3) The reference in sub-section (2) to a line shall be read as a reference to a wire, cable, tube, conduit, fibre, waveguide or other physical medium installed or maintained by or with the authority of the Commission and used, or intended for use, in connection with a telecommunications service.

(4) A person shall not divulge or communicate to another person, or make use of or record, any information obtained by intercepting a communication passing over a telecommunications system, or obtained by virtue of a warrant issued under section 11 or 21, except -

(a) in or in connection with the performance by the Organization of its functions or otherwise for purposes of security;

(b) for the purpose of narcotics inquiries that are being, or have been, made by officers of Customs; or

(c) in the performance of any duty of that first-mentioned person as an officer of the Commission.

Penalty: $5,000 or imprisonment for 2 years.

(5) Notwithstanding sub-section (4) -

(a) the Director-General of Security may, by himself or by an officer authorized by him, communicate, in accordance with paragraph 18(3)(a),

(b) or (c) of the Australian Security Intelligence Organization Act 1979, information obtained by intercepting a communication passing over a telecommunications system, or obtained by virtue of a warrant issued under section 11;

(b) the Commissioner of Police may, in accordance with the following sub-paragraphs, by himself or by a member of the Australian Federal Police authorized by him, communicate information obtained by intercepting a communication passing over a telecommunications system, or obtained by virtue of a warrant issued under section 21:

(i) where the information relates, or appears to relate, to the commission, or intended commission, of an offence against the law of the Commonwealth or of a State or Territory, being an offence punishable by imprisonment for life or for a period, or maximum period, of not less than 3 years - information may be communicated to a member of the Australian Federal Police for the purposes of investigations into the offence or to an officer of the Police Force of a State or Territory, as the case may be; or

(ii) where the information relates, or appears to relate, to activities prejudicial to security - the information may be communicated to the Director-General of Security; and

(c) a member of the Australian Federal Police, or an officer of the Police Force of a State or Territory, may, in the course of performing his duties as such a member or officer, communicate to another member of the Australian Federal Police or to another officer of that Police Force, as the case may be, information that was communicated to him in accordance with paragraph 18(3)(a) or (b) of the Australian Security Intelligence Organization Act 1979 or with sub-paragraph

(b)(i) of this sub-section.

(6) Without limiting the application of sub-section (4), a person may give information obtained by intercepting a communication passing over a telecommunications system, or obtained by virtue of a warrant issued under section 11 or 21, in evidence in a proceeding -

(a) by way of a prosecution for a narcotics offence;

(b) by way of a prosecution for an offence against the Telecommunications Act 1975 or a regulation or by-law in force under that Act;

(c) by way of a prosecution for any other offence against the law of the Commonwealth or of a State or Territory punishable by imprisonment for life or for a period, or maximum period, of not less than 3 years;

(d) by way of an application for an order under sub-section 243B(1) of the Customs Act 1901; or

(e) for the condemnation or recovery of a ship or aircraft, or of goods, seized under section 203 of the Customs Act 1901 in connection with the commission of a narcotics offence.

(7) An offence against this section may be prosecuted either summarily or upon indictment, but -

(a) an offender is not liable to be punished more than once in respect of the same offence;

(b) the offence shall not be prosecuted summarily except in the name of the Attorney-General; and

(c) where the offence is prosecuted summarily, the court shall not impose a penalty exceeding a fine of $1,000 or imprisonment for 6 months."

1. The word "warrant" is defined to mean in that Act, unless the contrary intention appears, a warrant issued under section 9, 10, 11, 20 or 21 of the Act. Sections 11 and 21 are concerned with warrants relating to telegrams, the other sections with warrants relating to the interception of communications to or from a "telecommunications service", which expression is defined to mean, unless the contrary intention appears, "a telecommunications service, within the meaning of the Telecommunications Act 1975, that is provided or used by, or used with the authority of, the Commission, and includes such a service, whether known as a private line or by some other name, that is not connected to the switching equipment at an exchange operated by or on behalf of the Commission". The expression "telecommunications service" is defined, in s.3(1) of the Telecommunications Act 1975, to mean in that Act, unless the contrary intention appears.
   
   

"(a) a service for transmitting, by means of electric or electro-magnetic energy -

(i) sounds, including speech and music;

(ii) visual images;

(iii) signals for the communication, whether as between persons and persons, things and things or persons and things, of any matter otherwise than in the form of sounds or visual images; or

(iv) signals for the actuation or control of machinery or apparatus; or

(b) a service for receiving any such sounds, images or signals that have been transmitted by means of electric or electro-magnetic energy."

Sections 9 and 10 of the Telecommunications (Interception) Act 1979 provide for the issue of warrants by the Attorney-General and, in certain circumstances, the Director-General of Security, authorising interception of communications being made to or from a telecommunications service; and s.20 provides for the issue of such warrants by certain persons holding judicial offices. Section 6(1) provides that, for the purposes of the Act, but subject to sub-section (2), interception consists of listening to or recording the communication without the knowledge of the person making the communication. Section 6(2) provides:

"(2) Where a person lawfully on premises, or in a vessel, vehicle or aircraft, to which a telecommunications service is provided by the Commission, by means of any apparatus or equipment that is part of that service -

(a) listens to or records a communication passing over the telecommunications system of which that service forms a part, being a communication that is being made to or from that service;

(b) listens to or records a communication passing over the telecommunications system of which that service forms a part, being a communication that is being received at that service in the ordinary course of the operation of that telecommunications system; or

(c) listens to or records a communication passing over the telecommunications system of which that service forms a part as a result of a technical defect in that system or the mistake of an officer of the Commission,

the listening or recording does not, for the purposes of this Act, constitute the interception of the communication."

1. It was submitted on behalf of the second respondent, to the magistrate and to me, that the preliminary examination with respect to an indictable offence, such as the magistrate was then sitting to take, did not answer the description, in s.7(6)(c) of the Telecommunications (Interception) Act 1979, "a proceeding ...... by way of a prosecution for any other offence against the law of the Commonwealth or of a State or Territory punishable by imprisonment for life or for a period, or maximum period, of not less than 3 years", and that for that reason evidence of the recorded telephone conversations sought to be adduced by counsel for the applicant could not be received by the magistrate sitting to take that examination. Having heard the submissions of counsel for the applicant and counsel for all the persons charged, the magistrate said, inter alia: "...... I rule that the tapes relied upon by the prosecution cannot be admitted into evidence as these proceedings are not prosecutions within the ordinary meaning of that word ...... I specifically rule that a committal proceeding is something that is preliminary to indictment and, again, not a prosecution". Those statements were made in the course of a careful statement by the magistrate of his reasons for the construction he placed upon the phrase "proceeding ...... by way of a prosecution" in s.7(6)(c), and for the intimation he was giving that he would not receive the tapes in evidence. After the magistrate's statement was made the proceeding was adjourned until the next day. When the proceeding was resumed on 20 November 1984 counsel for the applicant informed the magistrate that "the Crown is now in the position that flowing from your Worship's ruling of yesterday there would be otherwise insufficient evidence on which the Crown could ask you to commit any of these defendants for trial". Counsel for the applicant then sought, and was granted, an adjournment of the proceeding, so that an application to this Court for an order of review in respect of what he called the magistrate's "ruling" could be made and determined.

2. Neither in the submissions of counsel to the magistrate nor in the magistrate's statement of reasons was there advertence to the question whether s.7(6) was addressed only to information lawfully obtained in pursuance of a warrant or both to information lawfully obtained and to information unlawfully obtained.

3. The originating application in writing to this Court for an order of review under the Administrative Decisions (Judicial Review) Act 1977 specified the application thus:
   
   

"APPLICATION to review the decision of the first respondent under the Judiciary Act 1903 in preliminary examination proceedings in respect of informations for offences by the second respondent and others against s.42 of the Crimes Act 1914 THAT the admission into evidence of information obtained by the interception of communications passing over telecommunications systems be rejected.

Alternatively, APPLICATION to review the conduct of the first respondent engaged in for the purpose of making a decision under the Judiciary Act 1903 in preliminary examination proceedings in respect of informations for offences by the second respondent and others against s.42 of the Crimes Act 1914 THAT the admission into evidence of information obtained by the interception of communications passing over telecommunications systems be rejected."

1. When in the course of taking the preliminary examination in which the magistrate is engaged evidence is first tendered on behalf of the applicant in proof of the interception of the communications recorded on the tapes, and of the content of those communications, a decision to which the Administrative Decisions (Judicial Review) Act 1977 applies will in my opinion be made : a decision whether or not to receive the evidence. One might perhaps hesitate to regard the statements by the magistrate which I have quoted as constituting, or as announcing, a decision to which the Administrative Decisions (Judicial Review) Act 1977 applied, because the evidence to which the statements refer had not been tendered when the statements were made. And, although the first of the two statements expresses a decision to reject tender of the tapes as evidence, it may fairly be understood as a statement made upon the assumption that those tapes recorded interceptions which had been authorised by warrants, as counsel for the applicant asserted in opening that they had. If the assumption were falsified by evidence, other considerations would arise upon tender of the tapes, as the reasons for judgment in Hilton v. Wells and Ors. (High Court; unreported; judgment 14 March 1985) have shown. However that may be, by making those statements to counsel for the parties the magistrate engaged, in my opinion, in conduct for the purpose of making a decision to which the Administrative Decisions (Judicial Review) Act 1977 applies, and therefore conduct reviewable in pursuance of s.6(1) of that Act. The decision to be made is that to which I have referred : a decision whether or not to receive in evidence proof of the interception of the communications recorded on the tapes, and proof of the content of those communications. The conduct consists of the magistrate's oral communication to counsel for the parties of his conclusion that the proceeding in which he and they were engaged did not fall within the meaning of the expression "a proceeding ...... by way of a prosecution" in s.7(6)(c) of the Telecommunications (Interception) Act 1979. That conduct was for the purpose of making that decision, in my opinion : by that conduct the parties were informed of a conclusion of law, by the magistrate, likely to be relevant to the making of the decision, and thereby the parties were precluded from addressing, except by the magistrate's leave to be subsequently sought, to him any submission, concerning the decision to be made, which was contradictory of that conclusion. The applicant, who seeks a decision that the tapes be received in evidence, is in my opinion a person aggrieved by the magistrate's conduct, which constitutes an impediment to reception of the evidence.

2. It was submitted on behalf of the second respondent that the discretionary power of this Court should not in this case be exercised to review the magistrate's conduct, which was but a step in the control of a preliminary examination with a view to determining the admissibility of certain evidence. Reliance was placed upon observations in this Court concerning the exercise of that discretion in relation to decisions and conduct occurring in the course of such an examination : see Lamb v. Moss (1983) 49 ALR 533 at 542-551; Clyne v. Scott (1983) 52 ALR 405; Souter v. Webb (1984) 54 ALR 683; Young v. Quin and Ors. (1984) 56 ALR 168; Seymour v. Attorney-General (Cwlth) and Ors. (1984) 57 ALR 68.

3. Review of the conduct in question here requires the construction of a statutory phrase and a determination whether a proceeding commonly undertaken in the administration of the criminal law in the State of Victoria is within the description which that phrase expresses. No disputed or doubtful fact is to be established in the process of review. If the construction adopted by the magistrate be correct, the exclusion from evidence in committal proceedings of information obtained by intercepting, in pursuance of a warrant, a communication passing over a telecommunications system, which that construction tends to make more likely in many cases, will seriously diminish the usefulness which members of the High Court in Barton v. The Queen (1980) 147 CLR 75 regarded those proceedings as having in the administration of the criminal law. The second respondent is willing in this case to forego the advantages which disclosure of information of that kind in evidence might be thought to afford her. But the applicant has an interest in achieving admission of the tapes into evidence in the preliminary examination, an interest heightened by the circumstance that, as his counsel asserts, the second respondent will not be committed for trial if that evidence is not admitted. The conclusion of law announced by the magistrate is a substantial obstacle to reception of the evidence. There is a public interest in resolving the question of construction as soon as conveniently may be, for it can hardly be doubted that the question will soon arise in other committal proceedings. I think that, on balance, the discretion conferred by s.16(2) of the Administrative Decisions (Judicial Review) Act 1977 ought to be exercised to declare this Court's opinion whether on its proper construction s.7(6)(c) of the Telecommunications (Interception) Act 1979 comprehends the preliminary examination in which the first respondent is engaged.

4. The argument advanced on behalf of the second respondent, that what are commonly called committal proceedings are not comprehended by the phrase "a proceeding ...... by way of a prosecution for an offence", rested on two grounds. First, it was said that the conception which the word prosecution expresses in the context of s.7(6) is of the instigation and the prosecution, in another sense of that word, of a single curial proceeding which commences with an accusation of a crime, and involves the trial of that accusation, and concludes with the conviction or acquittal of the accused. Committal proceedings are not within that conception, it was said : the function is not judicial, but administrative; there is no trial of the accusation, but merely an investigation to elicit and record evidence in support of the accusation and any statement by the accused and any evidence which the accused may choose to give or adduce; and the proceeding does not conclude with any determination "of any finality ...... The committal proceedings determine nothing other than whether, on the material before the justices, there is sufficient to commit the accused for trial on any indictable offence". (per Anderson J. in Summers v. Cosgriff (1979) VR 564 at 568.) Second, it was said that there were examples of statutory usage of the verb "to prosecute" which demonstrated that prosecution was a process which commenced in a court of trial. Sections 351 of the Crimes Act 1958 (Vic.) and 69(1) of the Judiciary Act 1903 (Cwlth) were cited. The former section is in these terms:
   
   

"351. All treasons and misprisions of treason shall be prosecuted by indictment only, and all other indictable offences may be prosecuted by indictment or by presentment as hereinafter directed."

Section 69(1) of the Judiciary Act 1903 provides:

"69. (1) Indictable offences against the laws of the Commonwealth shall be prosecuted by indictment in the name of the Attorney-General of the Commonwealth or of such other persons as the Governor-General appoints in that behalf."

1. The second of the grounds advanced, and accepted by the magistrate, may conveniently be considered first. The verb "to prosecute" and the nouns "prosecution" and "prosecutor" are in extensive legal usage, but to none of them is it possible to assign a meaning except by reference to the particular context in which the word is used. William Blackstone commenced the 21st chapter of Book IV of his Commentaries with this sentence:
   
   

"We are now to consider the regular and ordinary method of proceeding in the courts of criminal jurisdiction; which may be distributed under twelve general heads, following each other in a progressive order :viz. 1. Arrest; 2. Commitment, and bail; 3. Prosecution; 4. Process; 5. Arraignment, and it's incidents; 6. Plea, and issue; 7. Trial, and conviction; 8. Clergy; 9. Judgment, and it's consequences; 10. Reversal of judgment;

11. Reprieve, or pardon; 12. Execution: all which will be discussed in the subsequent part of this book."

Having dealt in that chapter with arrest and in the next chapter with commitment and bail, he commenced the 23rd chapter with the sentence :

"The next step towards the punishment of offenders is their prosecution, or the manner of their formal accusation.

This usage of the word "prosecution" might be thought to lend support to the submissions of counsel for the second respondent. But the English Act 11 and 12 Vict. c.42, from which derive many of the provisions contained in Part V of the Magistrates (Summary Proceedings) Act 1975 (Vic.) and in Division 1 of Part IV of the Justices Act 1902 (N.S.W.), employs the word "prosecution" in a sense which is consonant with there being in train during committal proceedings a prosecution for the indictable offence charged. Thus, in ss. 9 and 10 of the English Act reference is made to "the Evidence adduced on the Part of the Prosecution before the Justice or Justices who shall take the Examination of the Witnesses in that Behalf". In s.18 of that Act it is provided that "nothing herein enacted or contained shall prevent the Prosecutor in any Case from giving in Evidence any Admission or Confession or other Statement of the Person accused or charged, made at any Time, which by Law would be admissible as Evidence against such Person". A similar usage is found in Part V of the Magistrates (Summary Proceedings) Act 1975 (Vic.), s.43 of which refers to "counsel and solicitor for the prosecution or other person conducting the prosecution"; and s.56 of which refers to "the evidence for the prosecution". There are references to "the prosecutor". A similar usage is found in Division 1 of Part IV of the Justices Act 1902 (N.S.W.). There are references to "the prosecutor" and to "the evidence for the prosecution" (s.41).

1. Counsel for the applicant sought confirmation of his submission, that a committal proceeding is a proceeding by way of a prosecution, in reasoning upon the question when a prosecution may be said to have commenced for the purposes of the law relating to the tort of malicious prosecution. But that reasoning demonstrates - and Sir John Beaumont for the Judicial Committee expressly states in Mohamed Amin v. Jogendra Kumar Bannerjee (1947) AC 322 at 330-331 - that the word is not used, in that context, "in the technical sense which it bears in criminal law".

2. Nor does the verbiage of s.351 of the Crimes Act 1958 (Vic.) or s.69(1) of the Judiciary Act 1903 (Cwlth) support the contrary conclusion, in my opinion. Each of those provisions must be understood as a legislative selection, from among the modes of instituting a criminal proceeding in a court having jurisdiction to try criminal issues by jury, of the particular mode or modes specified. By s.69(1) one mode is selected. Section 351 names two modes, but until its repeal in 1980 s.355 preserved two others - the information ex officio and the information ex relatione. (See Wren v. Hardy (1951) VLR 256). Each of s.351 and s.69(1) indicates the appropriateness of referring to those modes by the verb "to prosecute". Neither of them justifies an inference, in my opinion, that "prosecution" is an inappropriate word by which to refer to the institution, or to the carrying on, of other criminal proceedings in a forum not authorised to try criminal issues by jury.

3. I think that it is in accordance with common usage in legal discourse to speak of a committal proceeding as a prosecution. That usage is exemplified in the judgment of Stephen J. in Sankey v. Whitlam (1978) 142 CLR 1 at 79, as it is also in the language of statutory provisions regulating committal proceedings in Victoria and New South Wales, to which I have referred. And the legal conception of a criminal prosecution comprehends, in my opinion, the preliminary investigation which is set in train by the laying before a stipendiary magistrate of an information charging the commission of an indictable offence against the law of the Commonwealth or of a State or Territory. A committal proceeding was regarded by Brett M.R. as within the conception of "criminal prosecution", in Yates v. The Queen (1885) 14 QBD 648 at 655, 657, 658.

4. The decision in that case - that the phrase "criminal prosecution" in s.3 of the Newspaper Libel and Registration Act 1881 be construed so as not to comprehend a prosecution by criminal information filed by leave of the High Court - rested on the great inconvenience which would have attended a construction of the section dictated by common usage of that phrase. But I find no consideration of policy or convenience against the construction which common usage of the words "a proceeding ...... by way of a prosecution" suggests. It might, on the contrary, be thought that, as a committal proceeding may sometimes be transformed before its conclusion into the hearing and determination of the information, in consequence of the exercise of a power such as that conferred by s.12A of the Crimes Act 1914 (Cwlth) or that conferred by s.235(6) of the Customs Act 1901, the construction I adopt is the more convenient. (See Pearce v. Cocchiaro (1977) 137 CLR 600).

5. The order disposing of the application will be a declaration that the preliminary investigation which the first respondent sat on 19 and 20 November 1984 to take in respect of the indictable offence with which the second respondent was charged by the information of which exhibit KCC 1 to the affidavit of Kevin Charles Chalker sworn the 20th day of December 1984 and filed herein is a copy is a proceeding by way of a prosecution for an offence against the law of the Commonwealth within the meaning of s.7(6)(c) of the Telecommunications (Interception) Act 1979.