Tahmindjis v Brown

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 applications under the Administrative Decisions (Judicial Review) Act 1977. They all arise from the same circumstances and raise the same question, which might briefly be summarised as one whether committal orders made against the applicants by the learned Magistrate who is first respondent were invalid because of communications between him and an officer of the Attorney-General's Department, who at the time was a legal adviser to the informants. The last-mentioned are the second respondents in this case.

It is desirable to say something briefly as to the way in which the matter has proceeded before me.
At a directions hearing on 1 May, 1985 which related to proceedings Nos. G126 of 1983, G394 of 1984 and G416 of 1984 I directed that application No. G394 of 1984 (by Dr. Cassimatis) should come on for hearing first. I was told that in addition to matters relating only to that case there was a question described as being a "dry question of law" which was common to all three cases. It was agreed that this "dry question of law" should be dealt with in relation to all cases at the same time, at the conclusion of the argument relating solely to Dr. Cassimatis' case. The application by Dr. Tahmindjis (No. G126 of 1983) related only to this question. Counsel for Dr. Cassimatis were also instructed on behalf of Dr. Tahmindjis. The application by Dr. Moss (No. G416 of 1984) was then to follow.
The hearing of Dr. Cassimatis' application was fixed to commence on Monday 6 May. When that case was called on on that date there was also present counsel for Dr. Moss. Counsel for the informants was present but the Magistrate was not represented. It had been assumed that in accordance with the usual practice the Magistrate was submitting to such order as the Court might make.
I was informed on that occasion by counsel for Dr. Cassimatis and Dr. Tahmindjis that over the weekend he had become aware of some matters, as a result of which he wished to apply to amend the applications of his two clients by adding a ground under para.5(1)(a) of the Judicial Review Act, claiming a denial of natural justice. The matters in question related to the conversations to which I have referred earlier and counsel said that he and those instructing him were to that point of time unaware of them. Counsel for Dr. Moss stated that he also wished to amend to include the ground in question, the information having just come to hand. The amendments were not opposed and I gave leave to amend accordingly. It was common ground that the Magistrate should be served with the amended applications and particulars respecting the additional ground. I therefore adjourned the matter until Wednesday 8 May.
On that occasion senior counsel appeared for the Magistrate and said that his client would need some time to deal with the matter raised. Senior counsel appearing for the informants on the first occasion did not appear for them on this occasion, but Mr. Temby Q.C., as Director of Public Prosecutions, appeared in his stead, junior counsel remaining unchanged. The possibility of this change in senior counsel had been intimated on the previous Monday and the change was made, as I understand, because of possible embarrassment of counsel if he continued to appear for the informants. Mr. Temby informed the Court that he was in the process of taking over the matters under s.9(5) of the Director of Public Prosecutions Act 1983.
Counsel for the Magistrate sought an adjournment until Monday 13 May but an adjournment beyond Friday was opposed. Having in mind, among other matters, the very long and protracted history of the cases (they had commenced in 1978), the increasing desirability of their early finality, and the narrowness of the issue raised, it seemed to me that an adjournment of more than two days should not be allowed and I adjourned the cases until Friday 10 May.
On 8 May the solicitor for a Dr. Castanos was present in Court and he informed me that his client wished to be among the applicants. His client had been committed for trial on 11 April 1983, in respect of one charge of conspiracy, and on 9 November 1984 in respect of a second charge. I informed him that he could apply in Court on 9 May to file his principal application out of time. This was done and, it appearing that the matter sought to be raised was the natural justice issue involved in the other cases, and no other, I gave leave to file the application, although out of time, but on the condition that that applicant would abide by such order for costs as the Court might make. The making of this condition was not opposed. Its purpose, as I stated, was to enable the Court to do justice in relation to costs without unduly burdening any other party which might have to pay them with the costs of the additional representation proposed. There were present in Court at the time of the hearing of the application on behalf of Dr. Castanos the legal representatives of the informants and of the learned Magistrate. The former did not oppose the application and, the latter although not consenting, did not oppose the making of the order. I was informed on that occasion that the case for the learned Magistrate might not be complete by 10 May, but I indicated that it would require strong grounds for me to grant a further adjournment. In the event, none was applied for.
The hearing of the various applications together, in relation to the issue to which I have referred, was consented to by all the parties. It was also agreed that the evidence in one should be evidence in the others.
At this stage I am only considering the one issue.
The evidence is that on 18 May, 1982 the Magistrate twice rang Mr. Woltring of the Attorney-General's Department. Mr. Woltring was a senior officer involved in the preparation of the prosecution case, and the instructing of counsel. He made notes of the conversations on the day they took place and discussed them with his superiors on that day and the following day. The learned Magistrate did not keep any note of either conversation. The evidence concerning the conversations comprises the notes made by Mr. Woltring of the second conversation (those of the first were not tendered), an affidavit of the Magistrate and his oral evidence on cross-examination. Mr. Woltring did not give evidence, although available. I was told by more than one counsel that he had sworn an affidavit, which had been filed, but it was not read, and I have no knowledge of its contents. In substance, the Magistrate confirms what is in the notes which were tendered, although he adds an explanation of what his meaning was. In so far as there is any difference, I regard the notes as more accurate than the Magistrate's present recollection.
The substance of the first telephone conversation was deposed to by Mr. Brown as follows:

"20. On the morning of Tuesday the 18th May 1982 I telephoned Mr. Woltring before court hours and sought to see him. I no longer recall the precise terms of that conversation but believe that I conveyed to him the general purpose mentioned in or to the effect of the following terms:-

BRB: Having regard to what happened in court yesterday I would like to have a talk to you.

HFW: Who would be present?

BRB: Well I just want to talk to you.

HFW: Can I think it over?

BRB: Of course.

This conversation then concluded."

I set out in full the file note made by Mr. Woltring concerning the second conversation:

"At 4.10 p.m. on Tuesday 18 May, 1982 Mr. B. Brown S.M. rang I answered the phone and said to him:-

'Bruce in relation to our telephone conversation this morning, I have given the matter some thought and think it would be unwise of me to see you bearing in mind that this case is constantly under a microscope.'

Mr. Brown, S.M. said as follows:-

'Herman the reason I wanted to talk to you is that the way this case is going it will become a cause celebre and the reason I made those remarks in respect of Thomas and Nakis yesterday was to attempt to clarify the position. In my view Thomas and Nakis are lost causes and I will be taking some action in relation to that situation, that should not result in the whole case going down with them and may be the Crown should be looking at what it can salvage.'

I said to him:-

'As we had already made the assumption that he would take some action particularly in respect of Thomas because he had warned him in his capacity as a Senior Police Officer in respect of the privilege against self-incrimination. This is one of the reasons why we did not in our closing submissions make any reference to Thomas.'

He added:-

'I do not think there is anything improper in ringing you to express those views and I regard this as a confidential communication."

In order to understand the significance to be given to these conversations it is necessary to recite some of the history of the litigation which had taken place before the magistrate.
The present applicants and many others were charged on 31 March, 1978 with a conspiracy to defraud the Commonwealth, this being an offence under para.86 (1)(e) of the Crimes Act (Cth) 1914. The total number of defendants involved in the alleged conspiracy was 181, although 166 is also given as a figure. The Magistrate decided to hear the cases in "batches" and this method of proceeding was challenged. The New South Wales Court of Appeal delivered a decision on 23 March, 1979 dismissing the challenge on the basis that it was a matter of procedure in which the Court should not interfere (Moss v. Brown (1979) l NSWLR 114). The High Court subsequently refused special leave to appeal against this decision.
On 26 March, 1979 the prosecution opened its case against 21 defendants and the taking of evidence commenced on 18 April, 1979. Some of these defendants were doctors, most were not. The evidence for the Crown occupied in all 354 days. There were over 350 witnesses, approximately 13,000 exhibits and over 30,000 pages of transcript in the Crown case. The hearing continued from time to time thereafter and this evidence concluded on 13 July, 1981.
Two key witnesses for the prosection, in relation to the general conspiracy, were Mr. Nakis and Detective Chief Superintendent Thomas. During the course of the hearing, their creditability was seriously undermined. Despite repeated comments on the subject from the bench, the prosecution continued to place some reliance on Nakis, possibly to a critical degree, and the defence reacted correspondingly.
On 20 May, 1982 the prosecution informed the Magistrate that:

Mr. Rofe: "...since Monday we've been giving consideration to Your Worship's remarks regarding the Thomas and Nakis situation and the consequences that might conceivably flow therefrom. We appreciate that your Worship expressed tentative views then, however it would seem to us this morning your Worship tended to reaffirm a certain view and it would seem to us your Worship that that view is to be maintained, the prosecution consider it might be appropriate for the matter to be adjourned now to enable the prosecution to evaluate its case in the light of the view that might well be maintained and in the interests of the possible saving of time."

and counsel sought an adjournment.

The cases were adjourned until 7 June on which day counsel for the prosecution stated that the informants did not wish to proceed with the complaint of general conspiracy, but that it would still be argued that there were two separate conspiracies namely the "George" conspiracy involving Moss, Castanos, Cassimatis and another, and the "Soulis" conspiracy involving Tahmindjis, Castanos and others. The Magistrate then, and perhaps on later days as well, discharged the other defendants. The case proceeded in relation to these two alleged conspiracies.
On 29 November, 1982 the Magistrate charged the defendants with the conspiracies mentioned and found prima facie cases against them.
An application was made to this Court on behalf of Dr. Moss on 20 December, 1982 to review the decision of the Magistrate that a prima facie case existed against him in relation to the "George" conspiracy, and his decision to proceed with the committal hearing without allowing the defendants a further opportunity to cross-examine Crown witnesses. There was an objection to the competency of the application by the respondent (informant before the Magistrate) and this was dismissed. An appeal to the Full Court was dismissed on 12 October, 1983 (Lamb v. Moss (1983) 49 ALR 533).
On 11 April, 1983 the Magistrate committed Dr. Tahmindjis and Dr. Castanos for trial on the "Soulis" conspiracy charge. No further steps appear to have been taken by the Crown in relation to these proceedings.
The "George" conspiracy charge, in which Dr. Moss was a defendant, was adjourned until the appeal in the Federal Court on the question of competency was determined. After that happened (12 October, 1983), the case was further stood over while the application to the Federal Court in the same case was being considered on the merits. On 23 May, 1984 that application was dismissed by the Court.
The proceedings in the "George" conspiracy trial recommenced on 10 October, 1984. On 1 November, 1984 Dr. Cassimatis and Dr. Moss were committed for trial in relation to that conspiracy. On 9 November, 1984 Dr. Castanos was also committed for trial on the "George" conspiracy.
I set out in full what the Magistrate has said in his affidavit concerning the course of the proceedings before him.

"7. During the course of the hearing of the evidence I formed and expressed the view that two of the Informant's witnesses Donald Thomas and Chris Nakis were unworthy of credit. The said two witnesses were the main witnesses in the Informants' case of general conspiracy and the tentative opinion I formed was that that charge might well fail, albeit other indictable offences might be established by the evidence. Exhibited to me at the time of swearing this my Affidavit and marked "BRB1" are pages of the transcript of the hearing recording those early expressions of view to which I refer.

8. I formed the opinion as the matter progressed that the Informants might following my remarks well have considered their position in relation to the general conspiracy charge, but further evidence was from time to time adduced directed to this charge.

9. For this reason I on several occasions queried the relevance of evidence said to be directed to the general conspiracy charge. Mr.Rofe's response was that even were the general conspiracy charge to fail my duty to commit in respect of any indictable offence required that the evidence be admitted, and that he proposed to pursue the general conspiracy charge against all Defendants.

10. At the conclusion of the Informants' case, by consent of the parties I invited Mr. Rofe to outline to the court those charges which he submitted were established by the evidence, reserving to him the right of reply to the submissions made thereafter on behalf of the various defendants.

11. Thereafter Mr. Rofe addressed at length on the general conspiracy and other possible offences, that address continuing over 10 days from the 23rd November, 1981. During this address approximately 20 volumes of material including numerous written submissions were referred to and handed up.

12. Much of Mr. Rofe's address was directed to a submission that notwithstanding the destruction of the credit of the two main witnesses to the general conspiracy charge parts of that evidence ought where corroborated be accepted on the general conspiracy.

13. On the 8th of December, 1981 I adjourned further hearing of the charges to 13th April, 1982, to permit me to read and consider the written material submitted by Mr. Rofe and to enable the Defendants' counsel to prepare their respective addresses.

14. On 13 April 1982 Mr. Einfeld Q.C. began to address on the general conspiracy on behalf of the Defendants. Fifteen days into his address, on the morning of 17 May 1982, Mr. Rofe raised the question of the time required to complete all addresses. He estimated that the defence addresses would occupy a further 29 1/2 weeks and also referred to his address in reply, the possibility of further defence submissions and a further reply on his part. Exhibited to me at the time of swearing this my Affidavit and marked with the letter "BRB2" are transcript pages recording this exchange.

15. Nothing I had heard in Mr. Rofe's initial address had persuaded me that my tentative view on the general conspiracy charges was incorrect and I determined to attempt again to have the Informants reconsider their position in relation thereto. Further, I was conscious that Mr. Rofe had, after his address concluded and during Mr. Einfeld's address, produced two further volumes of submissions on possible (though not charged) conspiracies, whilst still not abandoning the general conspiracy charges. As Mr. Einfeld commented, the Defendants were not in any way ready to address on such submissions, and to permit the Informants to take up some type of fall-back position without declaring their position in relation to the existing charges appeared to me to be unfair to the Defendants, and likely to extend the hearings for a substantial period. Exhibited to me at the time of swearing this my Affidavit and marked with the letter "BRB3" are the two volumes mentioned."

And by way of explanantion for what he said:

"16. I had for some time been conscious of the cost and inconvenience associated with the Informants' endeavours to substantiate the charges of general conspiracy and I had formed the view that the continued cost and inconvenience to the Defendants associated with these charges was approaching oppression, and abuse of process of the court. One at least of the doctor Defendants a consulting psychiatrist had for some time been acting for himself, and I had no doubt that financial hardship and health problems were affecting a number if not all the 21 Defendants. I had been told that the question of continued legal aid was under review.

17. I accordingly addressed further remarks to Mr. Rofe. Exhibited to me at the time of swearing this my Affidavit and marked "BRB4" are transcript pages recording this."

(the transcript pages contain pointed comments adverse to the creditability of Nakis, and as to the dependence of the general conspiracy charges upon his evidence)

"18. These remarks were made soon after the commencement of hearing on Monday 17th May, but there being no response or reaction from Mr. Rofe Mr. Einfeld continued to address in relation to the general conspiracy.

19. Following my said remarks I determined to convey the views which I had expressed, directly to Mr. Woltring who was the senior instructing solicitor for the Informants, should there be no reaction during the day from Mr. Rofe. There was no reaction from Mr. Rofe during that day.

20. On the morning of Tuesday the 18th May 1982 I telephoned Mr. Woltring before court hours and sought to see him. I no longer recall the precise terms of that conversation but believe that I conveyed to him the general purpose mentioned above in or to the effect of the following terms:-

BRB: Having regard to what happened in court yesterday I would like to have a talk to you.

HFW: Who would be present?

BRB: Well I just want to talk to you.

HFW: Can I think it over?

BRB: Of course.

This conversation then concluded.

21. My purpose in seeking to see Mr. Woltring was to enable me to speak freely about my concerns and what I perceived to be the obduracy of senior counsel for the Informants in relation to my desire to avoid a substantial waste of time on the issue of general conspiracy, and to avoid the unfairness which I believed would follow the change in the Informants' position which then seemed likely to occur only after some further months of hearing. Whilst I had had these concerns for some time I determined to bring them to Mr. Woltring's attention only after the estimates of the time required for address were given on the 17th May 1982.

22. On the 18th May 1982 the hearing resumed at 10.00 a.m., and again no indication of reaction to my remarks was forthcoming from Mr. Rofe during that day.

23. After court hours I again telephoned Mr. Woltring and to the best of my recollection a conversation in the following terms or to the following effect then took place:-

HFW: Bruce, in relation to our telephone conversation this morning, I think it would be unwise to see you.

BRB: Well as you are well aware this case has become a cause celebre. I made remarks yesterday in relation to Thomas and Nakis in an endeavour to make plain my view that the Crown case on general conspiracy is a lost cause. Obviously that doesn't mean the automatic end of the Crown case but instead of wasting time you should maybe be looking to see what can be salvaged from the individual conspiracies.

HFW: Well yes, but I'm not sure that we should be talking about it Bruce.

At this stage of the conversation I gleaned that Mr. Woltring was uneasy, and unwilling to converse. I accordingly determined not to pursue the matter, but felt that some word of explanation was appropriate. I then said words to the effect:

BRB: Herman I don't regard it as in any way improper to speak to you as I'm only saying what I've said many times in open court. I do however regard it as confidential."

The Magistrate's explanation of his meaning and intention (in addition to one or two matters he had mentioned earlier) is set out in para. 24:

"24. I have looked at the document apparently produced to the Applicants herein pursuant to an application made under the Freedom of Information Act, which purports to set out Mr. Woltring's notes of the conversation in question. I make the following particular comments in relation to the conversation as there recorded:

(a) "What it (the Crown) can salvage".

Whilst my recollection of the actual words used by me is as set out above, I have no doubt that the context of this aspect of the conversation involved no suggestion that some advantage would occur to the Informants, as I understand the Applicants contend. My remarks referred directly to the need for the Informants to abandon promptly the general conspiracy and turn their attention to the alternative submissions which they had handed up during Mr. Einfeld's address but upon which they had not addressed, if after proper consideration of my remarks, they agreed with me.

(b) When I said that I regarded my communication with Mr. Woltring as confidential the confidentiality which I perceived to exist related solely to my having spoken to him without knowledge of his senior counsel, Mr. Rofe.

(c) I did not regard the approach which I made to be in any way improper as that which I had proposed to urge on Mr. Woltring was no more than I had publicly urged the previous day upon Mr. Rofe.

(d) At no time did I suggest anything affecting the position of any defendant adversely; my sole purpose was to expedite the matter in the interests of the Defendants and of the community generally."

The subsequent history is recorded as follows:

"25. On the 19th May, 1982 Mr. Einfeld continued to address, and no reaction to my remarks was expressed by Mr. Rofe.

26. On the 20th May, 1982, I made further remarks of the same type.

27. At 2.00 p.m. on the 20th May, 1982 Mr. Rofe sought an adjournment "to enable the prosecution to evaluate its case.

28. The matter was adjourned to the 7th June 1982. On the 7th June 1982, the 386th day of the hearing, Mr. Rofe announced that the Informants were "no longer pursuing" the general conspiracy count, and announced his intention to rely upon the evidence adduced in relation to two alleged offences. These events are recorded in the transcript pages exhibited to me at the time of swearing this my Affidavit and marked "BRB5"."

In cross-examination, the Magistrate said that what he had done, in communicating with Mr. Woltring was "unique and exceptional". It was also irregular. These descriptions do not of themselves involve a conclusion that there was a denial of natural justice.
Counsel for Dr. Cassimatis has been careful to emphasise that his case does not rest simply on bias, but this has been the particular matter relied upon. On this subject there are many cases, dealing with a wide variety of circumstances. Reliance has been placed particularly on the decision of the High Court in R. v. Watson; ex parte Armstrong (1976) 136 CLR 248, 262-3 and that of McInerney J. in R. v. Magistrate's Court at Lilydale (1973) VR 122. To these might be added Livesey v. The New South Wales Bar Association (1983) 47 ALR 45, 48-9. In this last mentioned case, the law is stated thus by the Court (at p.48):

"That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it."

The view I have formed of the evidence is that the learned Magistrate had become increasingly exasperated at the prosecution's reliance upon the general conspiracy. This arose largely, if not solely, from the view he had formed of the creditability of Thomas and Nakis. His view about the creditability of these people was made clear during the course of proceedings but as recently as 17 May was expressed as being tentative only. While it had been said by counsel for the prosecution that there was medical and other evidence to corroborate what Nakis had said, (see para. 12 of the Magistrate's affidavit) he had apparently formed a view in relation to that aspect also. He felt that it was no good raising the matter again with Mr. Rofe Q.C.,(counsel for the prosecution) and he thought the only approach or at least the best approach he could make was to speak to the solicitor who was instructing him in the proceedings.
Mr. Woltring was apparently reasonably well known to the Magistrate. He hoped that Mr. Woltring would use his influence in the conduct of the case to cause the general conspiracy count to be dropped. The case had attracted much public attention and some political concern. The Magistrate was conscious of publicity when he referred to it as, or likely to be, a cause celebre. The total costs involved were plainly very formidable indeed and the Magistrate has said that he also had this in mind when he spoke to Mr. Woltring.
The Magistrate says in his affidavit that he had made it plain in the days before the telephone conversations that he believed the prosecution could not succeed on the general conspiracy charge. This was correct only if his references to the lack of creditability of Nakis, in particular, and of Thomas, were to be taken as meaning that the general conspiracy charge must fail. This is not the way they were expressed. The fact is that both before and after 18 May the Magistrate was expressing strong views about the evidence of Nakis but not stating any view about the fate of the conspiracy charge as a whole. His oral evidence in this Court about his statement to Woltring is that he was referring in that conversation, not simply to Nakis and Thomas, but to the general conspiracy charge, that is, that it was a lost cause. Part of his evidence on this matter is as follows:

Mr.Einfeld: "I know that, but I am asking you whether there was any reason why you could not have said in open court in that period of days in May that the general conspiracy was a lost cause?---No, because the context of the consideration of that was the Thomas and Nakis element of the general conspiracy, as I recall it.

But when you spoke to Mr. Woltring you did not say, did you, that all you had decided was that Thomas and Nakis could not be resurrected? What you said to him was that the Crown case on the general conspiracy is a lost cause?---Yes."

Doubts about Nakis' evidence, at least if uncorroborated, had existed for years, apparently back to 1979.

The transcript shows that on 17 May, while Mr. Einfeld was addressing, the learned Magistrate made the following observations:

Bench: "I don't know what the situation is or how much time you are going to spend in due course in relation to the question of the evidence of Nakis, I'll just come to that in a moment, but just on which way you ought to now be developing your submissions now (sic). Wasn't the situation this that in the long run that I didn't permit a general cross examination of Nakis on the basis really what had arisen from his earlier evidence and the relevation of the events so far as they related to Detective Chief Inspector Thomas resulted in the fact that there was a conflict which had arisen in the Crown case where they had witnesses at odds with another. That was the consequence which they were going to suffer. The thing which concerns me is that we've heard the view that the Crown suggests ought to be taken in respect of Mr. Nakis and all these various comparisons of the evidence of others and all sorts of material which suggests that Nakis notwithstanding his admission that he told some untruths in the witness box was nonetheless a witness whose evidence ought not to be entirely discounted because there were other matters there introduced in evidence through other witnesses which suggested that when he'd said certain matters which enhanced the Prosecution's case, they ought to be accepted as truthful accounts because of this other material. The view that I have formed in relation to the matter notwithstanding the material that's been put in the validation process in respect of Mr. Nakis is that he's a witness who the Court ought to be very wary of in relation to his testimony. I don't want to put it any higher than that just at this stage.

If you have got some general matters that you want to address my mind to in respect of the whole of his evidence then I wouldn't want to deter you from that. Nor do I want to create a situation there where the Crown in response to some matters to the submissions or points that you made now may want to put some material out that you'd reply to. What I want to try and avoid is you going on for a long period of time in respect of Mr. Nakis, having regard to a view that I formed about it, but secondly that a situation would arise that the Crown again re-enforces that he ought to be accepted and we have a difficulty of you then having to make then (sic) further submissions about him now. My view is as I say about him that the Crown is going to have a great deal of difficulty in settling that feeling of grave apprehension that I have as to the reliability of the evidence of Mr. Nakis and in respect of the overall theme of his evidence. So I think it's an almost insurmountable hurdle so far as the Prosecution is concerned for it to overcome the fact that he's admitted amongst other things telling lies in the witness box. Secondly, he's given evidence on what's an established basis that there was a reward in the offing and the better his evidence the higher the amount of the reward."

On 20 May (prior to Mr. Rofe's application for an adjournment) he was expressing "tentative" views. I set out part of what he said on that day:

Bench: "I certainly don't want to impose any set of rules in respect of the hearing of the matter on the Crown at this stage because it may well be that they don't wish to put their case at all but I don't want to over simplify the situation as I said. But it seems to me that in the long run the defence submission that this is a medical matter is the test in the whole of these proceedings. Having regard to what's happened so far as my stated intention in respect of the evidence of Nakis is concerned. And when Nakis evidence is tainted as I've indicated I propose to hold that way and that will of itself flow to Detective Chief Inspector Thomas. As I say I don't want to over simplify it because there's (sic) in separate compartments and there to be assessed for the weight of those, of that long evidence of Theodorakas and other areas of evidence. But nonetheless it seems to me that the matter is shaping quite clearly on the basis of the general conspiracy charge there that in the long run what's going to be in issue is the medical condition of these persons charged and really very little other issue. Of course I can, that's an open view and as I say it's a tentative view. It's an open view and it may well be that the Crown can persuade me to another view because as I say I admit that it's quite likely that that over simplification of the matter is a matter which is going to create non acceptance by the Crown as being an over simplification and that's the difficulty. But if that is the position then what I said to you a short time ago in respect of where the Crown stands is of course without the direct evidence through Nakis if there was direct evidence. Assuming for the moment there is, without that going then, the evidence of the conspiratorial agreement is going to be one for inference and if one starts to infer why it is based on circumstantial material then I would have thought that the rules in relation to circumstantial evidence are quite binding."

It seems to me that, before and after 18 May, the Magistrate was expressing tentative views about the evidence of Nakis and Thomas, but in his conversation with Mr. Woltring he went further and expressed his opinion as to the fate of the general conspiracy charge. Mr. Woltring then knew, from the mouth of the Magistrate, that the latter's view about the creditability of the two witnesses was a final one, that no amount of corroboration could support the evidence of Nakis, and that the general conspiracy charge would fail, no matter how much further argument was addressed on the question. While the Magistrate should have tried to keep an open mind on these matters until the prosecution's presentation was complete, it was perhaps understandable in the circumstances of this case that he had by 18 May reached firm conclusions on them. The transgression lies in the private and confidential communication of his views to the solicitor for one party. Added to this is the fact that he did not tell the defence or state publicly what he had done. There is the further matter, which gives rise to concern, namely that after 18 May the Magistrate maintained the attitude that his views were "tentative". Mr. Rofe had been told by Mr. Woltring of the Magistrate's telephone calls, and the latter's expression of this attitude, as late as 20 May, must have seemed strange to them. They must have found it difficult to accept what was said at its face value. The defence, on the other hand, were ignorant of the telephone calls, and were entitled to accept what the Magistrate said as an accurate statement of his views.
The Magistrate wanted his telephone conversation with Mr. Woltring kept confidential. He has said in evidence that his purpose when referring in the conversation to confidentiality was to ensure that his approach did not reach Mr. Rofe's ears. Plainly, he also contemplated that it would not be discussed with the defence, as he considered he had made his views plain enough for them to know "full well" what his position was on the evidence of Thomas and Nakis, and, more broadly, on the general conspiracy. It is, however, only recently, by the use of the machinery of the Freedom of Information Act 1982 that the defence has become acquainted with the conversation, and it may before that have been unaware that any conversation such as that which was revealed had taken place.
The Magistrate apparently did not think that he could deal with his concern in open hearing but in this of course he was mistaken. One difficulty he faced was that the prosecution had not addressed finally on the matter of the general conspiracy. What it had done was, by arrangement, to outline its case (somewhat fully) and it had tendered a mass of argumentative material including documents setting out alternate but very much more limited and very much less serious conspiracies including the two finally charged. These have been described by the Magistrate and his counsel as "back-up charges", and by the former as potentially unfair to the defendants. The address by the prosecution took many days, but it was understood that it was not to be a final address. The Magistrate had nevertheless formed a clear and final view that the principal charge could not succeed. As I have said, he felt that he could not deal with this matter adequately in the hearing itself. It would of course have meant stopping counsel for the defence in his address on the general conspiracy, and calling on counsel for the prosecution to address. The Magistrate may then have been able to make his view plain at a relatively early stage. In cross-examination before me, he said that perhaps he should have followed this course, but did not do so as the Crown had still the right to address, and the defence were still addressing; it would "not have...been the agreed thing".
The immediate thrust of the conversation with Mr. Woltring was seemingly adverse to the prosecution's hope of success. It can therefore be said that if the private conversation was indicative of bias, the bias was against the party with whom the communication occurred.
A number of factors have been raised tending to negative or qualify this way of looking at things. In the first place it is said that the Magistrate was giving advice to the prosecution. This might slightly overstate the position, but he was prematurely telling the solicitor his views and by implication what he proposed to do. Being in advance of the prosecution's final address, this was legitimately the subject of complaint by it, but it was a considerable advantage, in time, cost and otherwise to know that the Magistrate had a concluded view on the matter, and what it was. Its main thrust was of course to persuade the prosecution to desist forthwith. The Magistrate was also in the same conversation giving useful information to the prosecution to the effect that so far as he was concerned they might still have a case on the other charges. Discussion has taken place before me concerning the use of the word "salvage", but I think that in the context the learned Magistrate was simply saying that although the principal case could not succeed, it was possible that a case could be made on lesser charges, of which he had been made aware. I do not accept the view that he was giving any assurance that he would commit or was likely to do so on these other charges.
It is the telephone conversations themselves which are legitimately the matter of complaint. However, the inference which I think is almost inevitable, having in mind what was done and said by the prosecution only two days later is that the telephone conversations in fact had the effect desired.
I have discussed bias against a party but I do not accept that it is necessary to prove in relation to any particular conduct that there was a bias, or appearance of bias "distinctly" in favour of one party against the other. It is the lack of impartiality which is at the centre of the matter and one does not set about to add up the advantages and disadvantages to this party or that, or balance them as between the parties (see the passages in Watson and Livesey previously cited and per Gibbs J. in R. v. Judge Leckie (1977) 18 ALR 93, 98). It can certainly be said that the parties the Magistrate appeared broadly to be favouring were those from whom the communications were withheld. However, counsel for the applicant Dr. Castanos put further matters before me. It was said that the defendants had a hope that if hearing of the charge of general conspiracy continued until completion (which meant many months) and the charge thereafter collapsed the prosecution would not try to proceed with the subordinate charges. It was also hoped that in so far as the subordinate charges would depend upon evidence adduced to that point, it could be discredited to such an extent that the Magistrate would not commit thereon. Put shortly, it is submitted that by his act the Magistrate interfered with an approach which the parties on both sides were for the time being at least content to accept. In particular, he interfered, so it is said, with the tactical planning of the defence.
It cannot be said that there was actual bias but I take the view that the telephone conversations, including the invitation in the first to a meeting and the request for confidentiality would convey to a reasonable person informed of the facts some disposition in favour of the prosecution. It does not seem to me to be critical that the prosecution was being persuaded to change its course. The more critical matter was that it and it alone was approached and it was given information of the kind to which I have already referred. This would save the prosecution costs and perhaps the contumely of failure at a later stage when the case had possibly attracted more publicity and its duration more criticism. An objective assessment would in my view lead inevitably to the conclusion that there was an absence of impartiality and that indeed there was a bias in favour of the prosecution. I do not mean by this to suggest that the Magistrate held throughout such a bias. It is a question of looking at his conduct on a particular occasion. Once it was known it could hardly be expected that either party, and least of all the defendants, could have confidence in the impartial administration of justice by the Magistrate in this particular case.
Saying this I hope I have made full allowance for the extraordinarily difficult and demanding task that confronted the Magistrate. There were originally 18l or so defendants and I have already mentioned the mass of material presented to him in the form of oral evidence and exhibits. I have no doubt that he had to deal with a great number and variety of problems in the conduct of the case and if I may say so with respect to counsel, had to endure some painfully long addresses. One might say that it was almost inevitable that he would falter at some stage in the almost superhuman task which he had. My role however is to address the particular problem and I have with regret come to the conclusion mentioned.
As I have said, it has been argued by the applicants that there was a denial of natural justice, going beyond bias. The Director of Public Prosecutions, Mr. Temby Q.C., has not argued against such a conclusion, but on the other hand has said that it is open to me to find that there was a denial of natural justice. His principal submission has been that in the exercise of the discretion under s.16 of the Judicial Review Act, I should not make an order quashing or setting aside the orders for committal. I will return later to discuss this submission.
The positive argument that there was no breach of the rules of natural justice has come from counsel for the Magistrate. As one or two counsel have pointed out, the normal situation has largely been reversed. The informants defend only on a matter of discretion and the learned Magistrate defends vigorously on the principal question.
My view is that there was a denial of natural justice apart from bias. There was a serious breach of the rules of procedure, part of which was a failure to observe the audi alteram partem rule.
The Magistrate's function is governed closely by the Justices Act (N.S.W.) 1902, made applicable by s.68 of the Judiciary Act 1903. Although the function is administrative in nature he is obliged in relevant respects to act judicially. Certainly, he was obliged to observe the rules of natural justice. He sought out one party and privately expressed his view to it on fundamental aspects still the subject of debate. He requested that his approach and his conversation be kept confidential and thereafter he failed to inform the defendants of what he had done or of what he had said. He was in fact obliged to hear the case and all submissions about it in the presence of both sides and to express his views and give information or advice concerning it when all concerned were present. I do not think that if he was acting as a judicial officer in a Local Court he would have contemplated a course such as he followed and there is no recorded case to which counsel has referred me or which I have been able to find in which any similar thing was done by a judicial officer in the course of his duties. I do not doubt that when acting in the capacity he was he was subject to similar constraints. In what he did he acted wrongly and contrary to the rules of natural justice.
It is not necessary to examine separately the extent of the Magistrate's duty to conduct proceedings in public and I have not heard argument on the question. The matter was dealt with by s.32 of the Justices Act, as it then stood, which was made applicable by s.68 of the Judiciary Act 1903. This section was repealed in 1982 (Act No. 165 of 1982), and a fresh section substituted, with effect from 24 December 1982.
I referred earlier to the submissions made by Mr. Temby Q.C., concerning the exercise of discretion under s.16 of the Judicial Review Act. It was argued that having in mind the extent of the case it was not in the public interest to interfere. I disagree. The major public interest must be that proceedings, expecially criminal proceedings, be conducted according to law.
The principal argument was rather as to the futility of interfering with the committal orders. This related itself to the undoubted right of the Crown (or Director of Public Prosecutions) to refuse to file an indictment notwithstanding committal and on the other hand to file one notwithstanding the absence of a committal. The argument would rather go to the role of committal proceedings generally. About this there has of course been much discussion. However, the legal powers of the Crown (and Director or Public Prosecutions) are one thing, the proper course of procedure is another. The principal object of committal proceedings is to ensure that a person is not put upon his or her trial unless an adequate case has been shown to exist and on the other hand to ensure that people are put on their trial if such a case does exist. Central to the whole concept is that the proceedings be in public. I appreciate that in the present case the Director of Public Prosecutions may not propose to file an indictment notwithstanding committal, but that is a matter for his decision. The fact is that he is now in charge of the conduct of the cases themselves from the prosecution viewpoint, and could, if he wanted, bring them to an end.
I am of the opinion that the orders for committal should be set aside. I have said to counsel that I will hear argument on the form of the orders which should be made once my reasons are concluded to this point and I will also hear them on the question of costs.

[1985] FCA 214

31 MAY 1985