Tahmindjis, A.J. v Brown, B.R.

IN THE FEDmAL COURT OF ATJSTRALIA

NEW SOUTH WALES DISTRICT PEGISTRY	1	No. G126 of 1983
I	No. I2396 of 1984
GENERAL DIVISION	1\10. G412 of 1984
No. GlGl of 1985
BETWEEN :

Rpplicants

BRIJCE RAYMGND BROmJ

First Respondent

m&N

J . A , HAYNES

' PETER LAMB

WELLS

C.S.FOSTER

Second Respondents

I-

REASONS FOR ORDER

JUDGE:	FOX J.
DATE OF ORDER:	5 June 1985
WHERE MADE:	Sydney.

When I delivered my reasons on the question of denial of

natural justice. I stood over until 5 June three matters:

(a) the question of costs.

(b) settling of the form of other orders to be made.

outstanding. namely whether it was open to the Maaistrate bearinq in mind the terms of s.41A of the Justices Act, 1902 to make an order dlscharaina the present applicants when the Informants told the

Mauistrate that they did not intend

to proceed with the

information alleqinq the general conspiracy. and to make an order for costs in their favour. This question remains a live issue.

After hearinq submissions. I have concluded that an

order should be made in each case that the committal order be set

aside, that the informant in each case pay the applicant’s costs

of the proceedlngs before me, limited in the case of Dr. Castanos

to the employment of one counsel and that the

hearins of the

outstanding issue be fixed for an early date. I decided that I should refuse an application on behalf of Dr. Castanos to add a qround to his application to deal’ with the outstandina i33Ue. The proceedings by the latter thereupon terminated.

I excused

counsel

for

the Mauistrate

from further

attendance.

In relation to costs it ~7as

submitted on behalf of the

informants (respondents before me) that thev should be required to pay only m e set of costs. There were however four separate defendants (applicants before me) and each was entitled to present his case. Although counsel for the Informants did not argue against the substance of what was put in relatlon to denial

of natural

3ustice. this attitude was

only announced durlng the

course of

the proceedings, no

concesslon was made on behalf of

the informants, and discretionary grounds had. to be addressed. In addition. there was the backuround consideration that the prosecution knew. at the time. of the Maaistrate's transgression.

No order as to h2s costs was sousht.

The applicants submitted

that

I should

make

orders

discharulng them

from the general conspiracy charue

and the

lesser

separate

consplracy

charues.

The Magistrate

made hls

order discharging the other defendants after

18 May

1 9 8 2 . and, of

course, had	committed the remaininu defendants	on the other
charges. I

It was not argued on this occasion, as it had not on earlier occasions, that the conduct in question

of the Maaistrate

should be regarded

as divorced from.

or not connected

to, the

decisions reached thereafter. Particularlv	as knowledue of the
relevant conduct was deliberatelv withheld	from the defendants.

the effect. it

was accepted. carried to declsions such as that to

charue the present

applicants with the lesser conspiracies. The

discharue of the defendants other than the present applicants was however the result of a statement bp the prosecution that it was

not proceeding with the

general

conspiracy charge, and

the

Magistrate’s orders for discharue were not the result qf anv Iudgment, or discretion. on his part. He had taken a deliberate course to achieve that end, but there was the mtervenlna independent decision of the prosecution.

The discharge of the defendants

(applicants).

relation to

the qeneral conspiracy, or

the lesser conspiracies.

does not

necessarily follow from the settinu aside of the

committal orders.

The prlmarp information 1 s

still on foot. so

far as

concerns the applicants. The matter of

discharue is, as

it seems to me, one for the Local Court. It is accepted that the first respondent cannot proceed with the matter (except.

posslblg, with the

consent

of all parties, which 1s not

forthcoming). How the Court should	act, and what it should do 1 s
a matter for it.

The other principal submission

was that I shoul6 make

orders as

to costs, in relation

to the proceedings before the

Magistrate.

thls connection. it should be mentloned that

after the general conspiracy charge

was dropped the Crown, actlna

behalf

of the prosecution, agreed

pay the discharued

defendants an amount for their costs.

The present applicants

were not discharued and the Mauistrate took the view that he could not in that circumstance make any order for costs In their

favour.

The situation In this reaard 1 s . as I have said. still a

live issue.

The requested orders for

costs were in two

parts, one

for the period

to 18

May and the other for the subsequent

period. until committal.

A s

indicated in the course of this

last hearlnq before me. it does

not seem to me that

I can make

any orders in this regard. The orders that should be made, or should have been made. are matters for the Mauistrate hearina the

matter.

assumina, that is, that some order should be made in

favour of the applicants.

I am in no position to ?udTe the amount

to be flxed. or to evaluate all the circumstances

which should be

taken into account in fixlng it. The fact that the committal orders are set aside (and other declslons after 18 Mav. so far as they Involved the exerclse of judgment or discretion relative to the charues. must also fall) does not necessarllp mean that the

defendants became entltled to all. or any partlcular

part, of

their costs. The Registrar of this Court could not be asked to tax the costs. A maqlstrate makinq an order for costs determines an amount himself.

Senior counsel for

the prosecutors. who appeared in the

place of Mr.

Temby, informed me that the

latter. as Director of

Public Prosecutlons.

had

not pet taken

over the matters under

s . 9 ( 5 ) of the Director of Fublic Prosecution Act. I asked counsel haw he saw the steps now to be taken in the prosecution case, I

did this for a number of reasons.

I wanted to know the realltv

of the current situation, argument on both sides having discussed different possibllities: I was concerned about in7ustice In relation to costs. and otherwise, and I wanted to see whether the

outstandlng issue was really one requirlng to

be dealt wlth.

Unfortunately, counsel's instructlons did not enable him

to sive

any meaningful assistance.

The possibilities mentloned included

reliance on the general

conspiracy as aualnst the present

applicants

(possibly

without

re-charaing the

alleged

co-conspirators). It

was also said at one

staue that the first

respondent. if the matter were to	go back to him, may not resard
hlmself as disqualified.

I must say that I find this attitude of the prosecution

quite deplorable. The defendants are entitled to know where thev stand, In particular what 1 s to be alleged asainst them, where and when. Thev have been the subject of charges whlch have been pressed for over six years. with the result, so far, that the major charge has been abandoned, and the lesser charses have

ended

inconclusively.

The conduct which resulted

the

committal orders being set aside

has been known to the Informants

for over three pears,

and was not disclosed untll verv recently.

The attitude of the prosecution seems

to be one that their

conduct can be as oppresive as

they wish, but in this they are

mistaken.

This Court has ample power to interfere, and if

necessarv, to restrain further proceedings.

These reasons not havinu been delivered when the matters

7 .

. .

(3)

t h e question

c o s t s .

cb)

se t t l lna of t h e form of othef orders to >P made.

( c )

d i r e c t l g n s

1 s

hea r lna

t he

I ~ T ,

I s sue

nutscandlnu.

namelv

whether

was

open

t o the

Macrlstrate

bearina

I n mind the

terms

of s.4lA

.2f t h e

, J u s t i c e s

Act,

1902

to make

an nri ler

d ischarain?

the

present

atppllcants

when the Informants

r ~ l d

t h e

Maulscrate

that

the17 d i d n c t

m t e n d to

prqceed w t h t h e

lnformatlon alleulnu che Tenera1

rcnsplracy,

3nrl

make

a n

o r d e r

f c r

ros'rs

t h e l r

f 3 ~ m u r .

This

f m e s t i o n

remains

l l v e I s s u e .

After

hear lnu

submissions. I

have

concluded

?hac

corrler

should be

made

in each case

tha t

t he

committal grder be s e t

as lde .

tha t

the

Informant

In each

case

pay t h e

a g p l l c a n t ' s

c o s t s

of the proceedlnus before ne,

limited

1n t he case

rJf

Dr.

Csstanos

t o	the	mploymentL of one counsel and that the	hear ina	s f	?he
.

outs tandlnq

I ssue

f i x e d

f o r

a n

e a r l y

d a t e .

dgclded

t h a t

should

ref'.lse

an a p p l l c a t l o n on behalf of D r .

Cascanos rn add 3

rrround

t o h l s a p p l i c a t i o n

t o dea l w i t h C

oustandlna 1s5de .

The

proceedlngs

t he l a t t e r

t he reapon t e rmina ted .

I eqcL:sed

counsel f o r the

Maqls t ra te

f rcm

€l.ir'rher

=tttendance.

- .

The applicants submit ted

that

1 should make ~orders

cllscharnlnq them

fram t h e

l e s s e r

seFa ra t e

cmsp l racv

crder d2scharqu-q

the other

rnlurse, had commlttea

the

charcres.

I t v a s

not, arcme6

+ a r l i e r o c c a s i m s ,

t h a t

t h e

The requested

grders for c o s t s

r e r e In t ~ s

P R ~ ~ S .

one

for the period up to 18 Map and the t2the: for the subsequ?r,c perlod. untll commlttal. 3-5 I lndlcar.2.d in ch-5 ~co1.1cse of this

last hearm?

before me. it does not 5eem

to m?

t n q t I can make

snv orders

In this reuard.

The orders that should be made.

o r

should have been

made. are matters for the Famscrate hearlnl- She

matter. assumlna. that

is, that some grder ihouli

be ma6e in

favour of the appllcants. I am In nc, posltlon to i1.1dUe T!IE. amount to be flxed. #or t o evaluate sll the clrcumstances xnlch sb.ould be Taken Into account, in fixlnu lt. The fact chat the commlttal

Qr4ers are set aslde land other declslons after

i? Mav. so f a r 3s

thev Involved the cxerclse of ludgment '2r ;1L?cretlm reiatlve t.3 the charues. must also fall) does n o t n e c e s s a r l i : J mean chat the

defendants became entltled

to 311. 3r any partlcular part. ,gf

Fhelr c o s t s .

The Registrar of thls rourt rrJlJd

net CIP asked to

Fa? the costs. A'magistrate maklnc

an o r & r

for costs d.et?rmlpes

an amount hlmself.

Senlor counsel for

the prosecutors. who appeared ln the

?lace gf

Yr. Tembv. inforned me that the

l a t t e r . ?.S

Director of

Publlc Prosecutlons. had

not pet taken nver

t he

matzet-5 Iwder

s . 9 ( 5 1 of the Director

Pl-lblic P r o 5 e c u t i o n F.ct..

I 3-keri

,:cl!m:eL

h o w he sa!?

the steps now

to be taker, I n the orozecuticn ,:a=?,

dlcl thls fnr a number of reasons.

I vanted tl-. know the realitv

i	I
i
i

of the current sltl-latlon. sruument

an 3 n t h s l d ? s havlna .Il=ct-lssed

different

posslbllltles; I was concerned

about In!ustlce

relation to costs. and other-wlse.

ar.d I wanted to see -~h.?ther the

outstanding Issue was really one requlrin?

+-o b.;

3?alt with.

Unfnrtuna5sly. csunsel's lqstructlons dld not enable hlm

u l v e

snv meanlnuful assistance.

The

poss~bllit~es

meqtrloned lncll-decl

relimce on

the

neneral

conspiracy as scralnst the present

applicants

posslbly

rnthout

re-charalng

the

3lleTed

co-consplrators).

It was also said. a t one stace that

t he €irst

respondent. ~f the matter were	t o qo back to h l m , ma:l	not recrar-d
hlmself as dlsquallfied.

I must sav that 1 find thls attitude of the ~rosecuc1on

quite deplorable. The defendants are entltled to know

%here thep

stand, I n particular Ghat 1 s to be allecred

aualnst then, where

and when.

Thev have been the

s u b ? e c t of charaes whlch have 5een

pressed f o r

m e r s1x

years. With the

r e s u l t , so fxr,

that

the

maior charge 3as been abandoned. 3rd the lesser ~ch~rcrez

have

ended

rnconcluslSely.

The ronduct whlch resuited

the

conmlttal orders beinu set aslde

has been known

t o the Informants

f o r aver three years. and was not 6:sclosed

untll very; recenr1:J.

The attltude of the prosecutlon seems

to be 3r!e ? t a t their

ronduct can be as opprebr-,'e as

theTT wlsh, but in thls

they 3rp

mlstaken.

This

Court has

smple power

+-n lnrerfere. 3nmi

L ?

necessary. to restraln further proceedln??.

were mentlmed

cour t on 26 .June. I should sdd that on ?hat

date 1-made ltr

plain that none of %he o r d e r s Intirnaced vere t o be

regarded as formally made at this st .a~-e.

[1985] FCA 296

5 Jun 1985