Souter v Webb

[1984] FCA 189

Re: GARY RONALD SOUTER
And: KEVIN ROBERT WEBB & GARRY ANTHONY WARD (1984) 2 FCR 193
No. G.83 of 1984
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)

CATCHWORDS

Administrative Law - ADJR Act - application to review decision by magistrate committing for trial - principles guiding exercise of court's discretion - whether "exceptional circumstances" shown - whether there is lack of a prima facie case - whether evidence to indicate applicant in possession of narcotic goods - relevance of intention of prosecution to add a count alleging attempt to take possession.

Administrative Decisions (Judicial Review) Act

Administrative Law - Judicial review - Decision of magistrate to commit for trial - Whether exceptional circumstances - Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 5.

HEADNOTE

Held: 1. The court should entertain a submission for review, upon the ground that there is no prima facie case, of a magistrate's decision to commit only where it is abundantly clear, without intricate consideration of the evidence, that there is a failure to establish a necessary ingredient in the charge.

2. Once it appears that the no case submission requires investigation of the minutiae of the evidence and the consideration of the proper inferences from circumstantial events then the stage has been reached at which it is proper to dismiss the application for review without further consideration.

Lamb v. Moss (1983) 49 A.L.R. 533; Bourke v. Hamilton (1977) 1 N.S.W.L.R. 470; Sankey v. Whitlam (1978) 142 C.L.R. 1; Shapowloff v. Dunn (1973) 2 N.S.W.L.R. 468 at 470; Gorman v. Fitzpatrick unreported (Supreme Court of New South Wales, Foster J., 23 September 1983); Clyne v. Scott (1983) 52 A.L.R. 405; Bacon v. Rose (1972) 2 N.S.W.L.R. 793; Seymour v. Attorney-General (1984) 1 F.C.R. 416; Ward v. Williams (1955) 92 C.L.R. 496; R. v. Bush (1975) 1 N.S.W.L.R. 298 at 324; (1975) 24 F.L.R. 346 at 377; R. v. Rawcliffe (1977) 1 N.S.W.L.R. 219; (1977) 32 F.L.R. 252; R. v. Kayal (1979) 2 N.S.W.L.R. 117; (1979) 38 F.L.R. 284; R. v. Kayrouz unreported (6 July 1979), referred to.

HEARING

Sydney, 1984, July 2, 3, 11. #DATE 11:7:1984

APPLICATION.

Application for orders of review pursuant to s. 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

K. Horler, for the applicant.

P. Roberts, for the respondent.

Cur. adv. vult.

Solicitors for the applicant: Watsons.

Solicitor for the respondent: T. A. Sherman, Australian Government Solicitor.

G.F.V.

ORDER

Application for review dismissed.

The applicant is to pay the costs of the respondent of the appli cation.

Application dismissed with costs.

JUDGE1

The applicant seeks review, pursuant to s.5 of the Administrative Decisions (Judicial Review) Act, 1977 of a decision by the first respondent, a Stipendiary Magistrate, that he be committed for trial for an offence against the Customs Act, 1900 namely:

"That on 2 May 1983 at Sydney in the State of New South Wales did without reasonable excuse have in his possession prohibited imports to which section 233B of the Customs Act, 1901 applies, to wit narcotic goods consisting of a quantity of cannabis which are reasonably suspected of having been imported into Australia in contravention of the said Act".

1. The second respondent is the informant, Detective Sergeant G A Ward.

1. The evidence tendered before me consisted of the transcript of proceedings, and the evidence, before the magistrate together with the charge sheet and certain correspondence relating to amended charges and particulars of the current application. There was no material raising any claim as to the existence of exceptional circumstances such as to justify this Court, in the exercise of its discretion, intervening to review the magistrate's decision.

2. Mr Roberts, on behalf of the second respondent, took the preliminary objection that the Court should not embark upon a review of the magistrate's decision. He referred to authorities both in this Court and in the Supreme Court of New South Wales to the effect that a superior court will intervene in relation to the conduct or outcome of committal proceedings only in exceptional circumstances.

3. In Lamb v Moss (1983) 49 ALR 533, a Full Bench of this Court (Bowen CJ, Sheppard and Fitzgerald JJ) considered the relationship between the jurisdiction given to the Court under the Administrative Decisions (Judicial Review) Act and decisions of magistrates conducting committal proceedings in respect of alleged offences against Commonwealth law. After reviewing authority the Court said, at p 546:
   
   

"It is sufficient, for immediate purposes, to observe that there is a considerable body of authoritative judicial opinion that exceptional circumstances will generally be required before a superior court will consider interfering in committal proceedings, particularly at an interlocutory stage. Failure to permit criminal proceedings to follow their ordinary course will, in the absence of special circumstances, constitute an error of principle . . .".

1. In their conclusions, at p 564, the Court again referred to the matter of discretion, pointing out that its exercise "will not necessarily call for a full investigation of the merits". They added:

"The power to make an order of review under the Act in respect of committal proceedings should be exercised only in most exceptional cases, especially in respect of a decision in the course of proceedings. Additional considerations might intrude at the final stage; for example, in respect of committal for trial and commitment to prison pending trial".

1. Lamb v Moss was a case in which review was sought of the conduct of the magistrate during the committal proceedings. It does not, therefore, directly govern the present case, where the applicant challenges the decision to commit. However, the language used by the Full Court is similar to that which has been used in a number of cases in respect of decisions by magistrates as to the existence of a prima facie case and/or to commit for trial.

1. In Bourke v Hamilton (1977) 1 NSWLR 470, Needham J, in the Supreme Court of New South Wales, held that he had jurisdiction under s.75 of the Supreme Court Act 1970 to make a declaration that the evidence adduced before the magistrate did not constitute a prima facie case. However, in the exercise of his discretion, he declined so to do, saying at p 493.
   
   

"It is my opinion that the Supreme Court should exercise its power under s.75 in respect of committal proceedings only where it is clear that, if such power be not exercised, justice will not be done to the plaintiff . . . Such a case would exist, no doubt, where it was clear that there was no evidence to support any charge against the plaintiff, and . . . in circumstances where the informations and summonses alleged offences not known to the law . . .

"I think I should approach the resolution of this case, so far as I am concerned, on the basis that, if it is clearly established that no examining magistrate, properly directing himself as to the law, could reach a conclusion, in respect of any charge against either plaintiff, that there was evidence upon which it could find that a prima facie case had been made out, I should make a declaration to that effect with such ancilliary orders as would be apt.

"I use the expression 'clearly establish@ because, first, there is ample persuasive authority to the effect that the Supreme Court, in the exercise of its power under s.75, should not sit as a court of appeal from the magistrate. Secondly, the power to interfere with committal proceedings is a drastic one, to be exercised only in those cases where the Supreme Court takes the view that a failure to exercise will necessarily result in an injustice being perpetrated.

"I refer also to 'any charge against either plaintiff, because it seems to me that, if it is open to the magistrate to hold that a prima facie case has been established in respect of any charge against either of the plaintiffs, the committal for trial of that plaintiff on that and other charges (in respect of which it could be shown that it was not so open) would not work such an injustice as to found the exercise of the discretionary power. The injustice stems from the exposure of a person, wrongfully, to criminal process. If there is a proper charge upon which he can, and should, be committed for trial, his committal on other charges, with which it can be confidently expected the trial judge will deal, works no such injustice upon him as to call for the intervention of this Court . . ."

1. Bourke v Hamilton was referred to, without apparent disapproval, by some of the members of the High Court in Sankey v Whitlam (1978) 142 CLR 1. Sankey v Whitlam was a case in which declarations were sought upon questions of admissibility of evidence at a time when the proceedings were part heard by the magistrate. The case does not fall into that category of cases in which courts have been asked to review decisions to commit for trial. However, some members of the Court did make general observations about the undesirability of intrusions into the criminal process by applications for declaratory relief. At p 26 Gibbs ACJ referred to the delay which had occurred because of departures from the normal course of procedure and said:

"For these reasons I respectfully endorse the observations of Jacobs P in Shapowloff v Dunn

(1973) 2 NSWLR 468 at p 470, that a court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal 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. . . . If a judge failed to give proper weight to these matters it could not be said that he had properly exercised his discretion".

1. At pp 81-82 Mason J referred to the paucity of authority relating to the grant of declaratory relief in respect of proceedings and went on:
   
   

"The absence of authority is doubtless to be explained by a variety of circumstances - the recognition that the function of a magistrate in hearing committal proceedings is to decide whether there is a prima facie case against a defendant which warrants his being put upon trial; that a committal for trial is a preliminary examination which involves no final determination of the defendant's guilt of the offence charged; the absence of any appeal from the magistrate's decision; and the existence of the Attorney-General's discretion to commit for trial. All these factors tend to indicate that a plaintiff for declaratory relief in relation to committal proceedings needs to show some special reason why the court should grant the relief sought in lieu of allowing the committal proceedings to pursue their ordinary course."

1. Foster J, in the Supreme Court of New South Wales, recently reviewed the authorities in Gorman v Fitzpatrick not reported, 23 September 1983. The plaintiffs in that case sought a declaration that there was no evidence upon which the first defendant, the Stipendiary Magistrate who had committed them for trial, could reasonably form the opinion that a prima facie case had been made out, together with consequential relief. At p 19 Foster J concluded, after an analysis of the authorities that, in such a case, "relief can be granted only in exceptional circumstances". He elaborated, in the context of the case before him, at p 20, by saying that:
   
   

"it is clear that no question arises unless I am, myself, satisfied that the evidence before the magistrate discloses no prima facie case in respect of the relevant conspiracy charges".

1. There are two recent decisions by members of this Court applying the principles enunciated in Lamb v Moss. In Clyne v Scott, (1983) 52 ALR 405 Beaumont J dealt with an application under the Administrative Decisions (Judicial Review) Act to review a number of decisions made by a magistrate during the course of then current committal proceedings. He considered, and decided adversely to the applicant, three separate submissions of law any of which, if upheld, would have resulted in the conclusion that the information was bad. Additionally, the applicant contended that certain material of a confessional nature was inadmissible. Beaumont J declined, on discretionary grounds, to deal with this submission, saying at p 414:
   
   

"In my view, this branch of the applicant's argument differs from the preliminary objections already dealt with. Those objections raised jurisdictional issues of a very different character, being questions similar to those arising in Bacon v Rose and Sankey v Whitlam which were recognised in Lamb v Moss as proper exceptions to the general rule against interference in committal proceedings.

"In my opinion, without expressing any view on the ultimate merits of the applicant's argument, this point falls within the scope of the general rule and for the reasons advanced in Lamb v Moss, it is not, I think, appropriate that the Court should intervene in committal proceedings on a question of admissibility of evidence".

1. That decision was appealed to a Full Court (Bowen CJ, McGregor and Sheppard JJ, 8 March, 1984, unreported) but no point was taken in relation to the exercise of discretion by Beaumont J.

2. In Seymour v Attorney-General (Fitzgerald J, 8 May, 1984, unreported) application was made under the Administrative Decisions (Judicial Review) Act to review a decision of a magistrate to commit the applicant for trial for conspiracy. Fitzgerald J noted the reference in Lamb v Moss to the decision of the High Court in Ward v Williams (1955) 92 CLR 496 and referred to the statement in that case, at p 514, that a tribunal called upon to exercise a discretion may properly reach a position in which it can say with confidence that particular facts could not affect the exercise of its discretion and thereupon refuse to receive further evidence. Applying that principle to the case before him, Fitzgerald J commented, at p 39, that:
   
   

"It will often be open to the court to dismiss unsuitable applications for review at the threshold without investigation of substantive issues beyond what is necessary for the proper exercise of the court's discretion".

1. In conclusion, and speaking of a case where the magistrate had already committed for trial, Fitzgerald J said at p 49:
   
   

"It is sufficient for immediate purposes to observe that there is a considerable body of authoritative judicial opinion that exceptional circumstances will generally be required before a superior court will consider interfering in respect of committal proceedings. The Judicial Review Act does not provide a general appeal from decisions in such proceedings. Failure to permit criminal proceedings to follow their ordinary course will, in the absence of special circumstances, constitute an error of principle, as Gibbs CJ pointed out in Sankey v Whitlam".

1. Against this background, the question arises in the present case as to whether there exist exceptional circumstances such as to warrant this Court reviewing the decisions of the magistrate that there is a prima facie case and a case sufficient to warrant putting the applicant upon his trial. Mr Horler, counsel for the applicant, contended that the evidence did not disclose a prima facie case; it was not shown that his client was in possession of the cannabis, within the meaning of that term as used in s.233B of the Customs Act. A number of decisions of the New South Wales Court of Criminal Appeal were cited to establish the proposition that, in that context, "possession" connotes intentional and exclusive physical control of an object: see R v Bush (1975) 1 NSWLR 298 at p 324, R v Rawcliffe (1977) 1 NSWLR 219, R v Kayal (1979) 2 NSWLR 117 and R v Kayrouz, 6 July 1979, unreported. As those decisions show, a person may be held to have had possession of narcotic goods found in a package or larger article over which he had, and intended to maintain, exclusive physical control even without evidence that he knew that the narcotic goods were in the package or larger article. Nagle J said in Bush at p 324:
   
   

"A claim by him that those goods were slipped into his bag or garment or were inserted into the package or container or planted in his room or other place without his knowledge, or suspicion, or reason for suspicion, are matters which he may establish to the tribunal of fact as, according to the circumstances, providing a reasonable excuse for such possession".

1. The evidence before the magistrate indicated that a vessel, the "Zim", carried to Australia in April, 1983 a sealed metal container. The container was landed at Port Botany where it was inspected by customs officers and police. It was found to contain either 820 or 850 cardboard cartons. The cardboard cartons all bore inscriptions indicating that the contents were pineapple pieces. Some of the cartons had the notation "pizza", some had the notation "snappy" and the remainder had the notation "stock". Apparently about 150 cartons were branded "stock" and of these 30 were hand-labelled by a black felt pen, in contra distinction to the remainder of the cartons which were labelled in green printed lettering. Each carton contained six cans, each of three kilo capacity. The customs officers and police opened numerous cans and discovered that in each of the 30 hand-labelled cartons, five out of the six cans contained cannabis resin. The remaining can contained pineapple pieces. The customs officers and police removed the cannabis resin from all except a total of five cans, substituting other material. The five cans were returned, one to each of five hand marked cartons, and the shipment was then allowed to be delivered by road to a warehouse at Pyrmont.

2. Mr R Mansfield, the manager of the company occupying the Pyrmont warehouse gave evidence that the portion of the shipment respectively labelled as "pizza" and "snappy" had been pre-sold before delivery. On the day of delivery he received a telephone call from a person who gave his name as Jamieson and who offered to purchase the 150 cartons marked "stock". Mr Mansfield agreed to sell at a price of $2,475.00 and indicated that the stock could be picked up in return for a bank cheque. Shortly after that time the delivery arrived and was unloaded into the warehouse. Some hours later the applicant, Mr Souter, and a Mr Collins arrived in a Budget Rent-a-Car van. Mr Collins spoke to Mr Mansfield, apparently not in the presence of the applicant, and handed to him a bank cheque for $2,475.00.

1. The storeman had, by that time, left for the day so Mr Mansfield himself operated the forklift to load the cartons. He chose to first lift a pallet containing the 30 cartons marked in black handwriting. According to Mr Mansfield, he placed the pallet into the back of the van and withdrew the forklift, leaving the pallet resting on the floor of the van. Mr Collins and Mr Souter started to take the cartons off the pallet and to place them directly on the floor of the van. At that time the police arrived and "the whole operation ceased". Mr Mansfield thought that only two or three cartons had actually been removed from the pallet at that time.

2. There are some discrepancies between the detail of Mr Mansfield's evidence and that of the various police officers who entered the premises. Some police witnesses thought that the forklift was still bearing the weight of the pallet and they differed amongst themselves as to the extent to which the pallet protruded from the inside of the van at the time of their arrival. One witness, Detective Senior Constable King, spoke of seeing Mr Collins and Mr Souter unloading the cartons and he thought that some six to eight cartons had been unloaded before work stopped. Whatever the significance of these discrepancies at a trial, they do not matter for present purposes. There was ample direct evidence that at the time of the police intervention Mr Collins and Mr Souter were in the act of unloading the cartons on the pallet into the van. Moreover, according to Detective Sergeant Ward, the applicant admitted to him that at that time the pallet "was being loaded into the rear of the truck".
   

3. The evidence goes on to indicate that the police
   officers took possession of the Budget van and drove it, with the pallet and all 30 cartons to Redfern. The cartons were examined and were found to contain the five cans containing cannabis.

4. There is prima facie evidence of intention to possess. Explaining his involvement in the matter, the applicant is alleged to have told Detective Sergeant Ward that he had been asked to do the job by a person whom he declined to name. Asked what he had been told about the contents of the cartons he is said to have replied "there was never a specific mention of anything in the carton. It was just to pick up a load". Later, according to Detective Sergeant Ward, he said "I knew it was grass, or was lead to believe it was grass, I didn't know. If it had been smack or coke or anything like that, I would not have done it"
   

5. The informant, before the magistrate, contended that,
   at the time of the entry into the warehouse by the police, the cannabis was in the joint possession of Messrs Collins and Souter. Each were charged with having in possession, without reasonable cause, prohibited imports imported into Australia in contravention of the Customs Act. In the event the magistrate committed each man on a charge of having in possession, without reasonable excuse, prohibited imports reasonably suspected of having been imported into Australia in contravention of the Act.

6. Mr Horler pointed out that the cannabis was only in the five cans and that the precise whereabouts of those five cans, in the 30 cartons, was not established by the evidence. There was nothing to indicate, he said, that any of the cans were in a carton which had been off-loaded from the pallet onto the floor of the van before the police stopped work. As a factual statement that is correct but the informant contends that it is enough that the five cans were in the 30 cartons which were in the process of being loaded into the truck at the time of the arrival of the police. Mr Roberts argues that at that time the 30 cartons were in the control of Mr Collins and Mr Souter. Mr Mansfield, the importer, had agreed to sell 150 cartons, including the 30 hand marked cartons, in return for delivery of a bank cheque. The cheque had been paid to him and he was assisting Messrs Collins and Souter take delivery of the cartons at the time of the police arrival. Mr Souter intended to take delivery, as indicated by his admissions to Detective Sergeant Ward. Mr Horler contests the sufficiency of this evidence arguing that having regard to the continused use of the pallet and, possibly, the fork lift, the 30 cartons were still under the dominion of Mr Mansfield, the manager of the company occupying the warehouse. Furthermore, he contends that if possession had passed from Mr Mansfield it had passed to Mr Collins, the person who had paid over the cheque and who had hired the Budget van, rather than to Mr Souter.

7. The determination of the issue as to possession depends both upon a precise analysis of the details of the evidence and consideration of the proper inferences to be drawn from various surrounding circumstances, such as the payment of the cheque and the hire of the van. However necessary this may be at the trial I do not consider that this type of detailed dissection is appropriate to an application for review. The Court should entertain a submission for review, upon the ground that there is no prima facie case, of a magistrate's decision to commit only where it is abundantly clear, without intricate consideration of the evidence, that there is a failure to establish a necessary ingredient in the charge. To depart from that principle is significantly to erode the requirement of exceptional circumstances, and to create the opportunity, in a substantial proportion of cases, for yet another review of the facts, additional to committal proceedings and a trial, with attendant costs and delays. Once it appears that the "no case" submission requires investigation of the minutiae of the evidence and the consideration of the proper inferences from circumstantial events then the stage has been reached at which it is proper to dismiss the application for review without further consideration. At that stage the court "can say with confidence that particular facts could not affect the exercise of its discretion": Ward v Williams at p 514.

8. One other feature of the present case, relevant to the remarks made by Needham J in Bourke v Hamilton, should be mentioned. By a letter dated 12 April 1984 the Deputy Crown Solicitor notified the solicitors for the applicant that, at the trial, the prosecution would add an alternative count that the applicant did "attempt to obtain possession" of the goods. I should have thought it to be beyond serious argument to the contrary that the evidence before the magistrate at least indicated a prima facie case of an attempt to obtain possession. It would follow that, whatever the outcome of this application the applicant would properly be put upon his trial. The justification for intervention by this Court, namely the injustice of exposing the applicant wrongfully to criminal process therefore disappears: see Bourke v Hamilton at p 493.

9. Finally, and lest my approach on principle is erroneous, I indicate my view that, in any event, the evidence does disclose a prima facie case of joint possession by Messrs Collins and Souter. There was evidence of intent to take possession. The two men had acted jointly in going to the warehouse and in loading the goods. On one version, at least, the whole of the 30 cartons were within the van (which stood just inside the open door of the building) when the police arrived. They had physical control. They were entitled to assert control against all comers, including Mr Mansfield who had sold the goods and had delivered the 30 cartons into the van. They may, of course, have had possession on behalf of someone else - perhaps the mysterious "Mr Jamieson" - but that possibility does not deny the existence of a prima facie case.

10. The application should be dismissed with costs.