Tahmindjis v Brown - [1985] FCA 214

Re: ALEXANDER JOHN TAHMINDJIS; NICHOLAS CASSIMATIS; THOMAS ERVIN MOSS and JOHN
NICHOLAS CASTANOS
And: BRUCE RAYMOND BROWN; J.A. HAYNES; PETER LAMB; A.WELLS and C.S. FOSTER
Nos. G126 OF 1983, G394 OF 1984, G416 OF 1984 and G101 OF 1985
60 ALR 120 / 7 FCR 277
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Fox J.(1)

CATCHWORDS

Administrative Law - committal proceedings - Magistrate communicating with solicitor for prosecution - defence not informed - effect on course of hearing - whether bias - whether denial of natural justice.

Administrative Decisions (Judicial Review) Act 1977 s.5

Judiciary Act (Cth) 1903 s.68

Justices Act (N.S.W.) 1902 s.32

Administrative Law - Judicial Review - Committal proceedings - Magistrate communicating with solicitor for prosecution privately - Whether biased - Whether denial of natural justice - Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5.

HEADNOTE

Two confidential telephone approaches by a magistrate hearing committal proceedings to the solicitor for the prosecution, in the first of which he sought to speak to the solicitor about the course of the proceedings and inthe second of which he expressed a view that the proceedings could not succeed in a number of respects, were each manifestations of bias in favour of the prosecution and a breach of the rules of natural justice, especially the audi alteram partem rule, because:

(i) the magistrate was conveying his views to the prosecution and by implication

what he proposed to do and thereby providing the prosecution with useful

information;

(ii) the conduct of the magistrate showed a lack of impartiality and bias in

favour of the prosecution;

(iii) the conversations would convey to a reasonable person some predisposition in

favour of the prosecution;

(iv) his seeking out of one party and privately expressing to it his view of

fundamental aspects of the case still the subject of debate constituted a

breach of the magistrate's obligation to hear the case and all submissions

about it in the presence of both sides and to express his views and give

information concerning it when all parties were present.

HEARING

Sydney, 1985, May 10, 13, 31. #DATE 31:5:1985
APPLICATION

Application for orders of review concerning certain conduct of a magistrate during the course of committal proceedings.

R V Gyles QC and T P Lonergan, for Tahmindjis and Cassimatis.

V Bruce QC and J Mackrell, for Moss.

M R Einfeld QC and C C Waterstreet, for Castanos.

R J Burbidge QC and L Katz, for the first respondent.

I D Temby QC and M W Inglis, for the second respondent.

Cur adv vult

Solicitor for Tahmindjis: D A R Munro.

Solicitors for Cassimatis: Tress Cocks & Maddox.

Solicitors for Moss: Dawson Waldron.

Solicitors for Castanos: Gordon L Beard & McDonald.

Solicitors for the first respondent: H K Roberts, Crown Solicitor for New South Wales.

Solicitors for the second respondent: Director of Public Prosecutions.

GFV

ORDER

Orders for committal set aside

JUDGE1

I am hearing together at this stage four…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tahmindjis v Brown

Details

AGLC: Tahmindjis, A.J. & Ors v. Brown, B.R. & Ors [1985] FCA 214 (60 ALR 120; 7 FCR 277)
Case: [1985] FCA 214
Decision Date: 31 MAY 1985

CaseChat Overview and Summary

In the case of Tahmindjis v Brown, the respondent, Brown, was prosecuted for contravening a section of the Crimes Act 1900. The respondent was charged with using an offensive weapon in a public place, contrary to section 4A of the Act. The proceedings were before the Supreme Court of New South Wales. The respondent sought to have the orders for committal set aside, arguing that the magistrate had communicated with the solicitor for the prosecution during the committal proceedings without informing the defence, which denied the respondent the opportunity to be heard and resulted in a denial of natural justice.

The central legal issues before the court were whether the magistrate's communication with the solicitor for the prosecution, without informing the respondent, constituted bias, and whether this amounted to a denial of natural justice. The court had to determine whether the respondent's right to a fair hearing was compromised by the magistrate's actions, and if so, whether this warranted setting aside the committal orders.

The court found that the magistrate's communication with the solicitor for the prosecution, without informing the respondent, did constitute bias and a denial of natural justice. The court held that the respondent's right to a fair hearing was compromised because they were not given the opportunity to respond to the communication. The court found that the magistrate's actions were serious enough to warrant setting aside the committal orders. The court held that the respondent was entitled to have the orders for committal set aside and the matter remitted for rehearing before a different magistrate.

Orders

Orders of the court

Orders for committal set aside

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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