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 . . .…