Thorp, M.W. v Abbotto, M
[1992] FCA 117
•18 MARCH 1992
Re: MALCOLM WILLIAM THORP
And: MARIO ABBOTTO
No. V G5 of 1992
FED No 117
Administrative Law
(1992) 106 ALR 239
(1992) 34 FCR 366
(1992) 59 A Crim R 208
(1992) 26 ALD 668 (extracts)
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Lockhart(1), Gummow(2) and O'Loughlin(3) JJ.
CATCHWORDS
Administrative Law - Judicial review - Magistrate's power to commit a defendant for trial where there are two hypotheses, one consistent with guilt and the other with innocence - whether Magistrate bound to discharge the defendant - whether hypothesis consistent with innocence may be taken into account unless supported by evidence.
Magistrates' Court Act (1989) Victoria: s. 56, Clause 11(2) of Schedule 5.
Forsyth v Rodda and Anor. (1988) 37 A Crim R 50
Forsyth v Rodda and Anor. (1989) 87 ALR 699
HEARING
SYDNEY
#DATE 18:3:1992
Counsel for the Appellant : M. Rozenes QC
B. Walters
Solicitors for the Appellant : Director of Public Prosecutions
Counsel for the Respondent : R.R.S Tracey QC
P.N. Rose
Solicitors for the Respondent : Juliano, Ford and Co.
ORDER
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The orders of Heerey J. of 20 December 1991 be set aside.
3. The respondent's application for an order of review be dismissed.
4. The respondent pay the costs of the appellant of the proceedings at first instance and of this appeal.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
The primary question in this appeal is whether a magistrate is entitled to commit a defendant for trial in circumstances where there are two hypotheses, one consistent with guilt and the other with innocence, or whether he is bound in those circumstances to discharge the defendant.
On 11 June 1991 a magistrate sitting in the Magistrates' Court at Melbourne made an order committing the respondent, Mario Abbotto, for trial on a charge which alleged a contravention of s. 10(1)(b) of the Passports Act 1938 (Cth) ("the Passports Act"). That provision is in the following terms:
"(1) A person shall not knowingly make any false or misleading statement, whether orally or in writing -
(a) ...
(b) in support of an application by another person for an Australian passport or for a renewal or endorsement of an Australian passport."
The respondent sought a review in this Court of the Magistrate's order pursuant to the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). The learned primary Judge (Heerey J.) ordered that the decision of the Magistrate be quashed and set aside and that the appellant, Malcolm William Thorp (the informant in the proceeding before the Magistrate), pay the respondent's costs. The appellant appealed to a Full Court of this Court from his Honour's judgment.
The evidence presented to the Magistrate by the prosecution took the form of a hand-up brief. There was no cross-examination of any witness. As the primary Judge found, the essential elements of the evidence were as follows. On or shortly after 29 June 1984 application for an Australian passport in the name of Vincenzo Marrama was lodged with the Passport Office. The evidence established that the signature on the form was in fact that of Mr Marrama. For a passport to be issued it is necessary that the form of "certification regarding applicant" (block number 11 on the form) be completed and signed by a qualified person, which included at the relevant time a solicitor (the respondent is a solicitor). The form of certification stated:
"I, Mario Abbotto, solicitor, of (residential address) and (business address) hereby declare that I am an Australian citizen and that I have known Vincenzo Marrama personally for a period of two years. To the best of my knowledge and belief the statements made by the applicant in this form are true and the signature on the application is that of the applicant. I have endorsed the back of one of the accompanying photographs of the applicant and his/her child/ren."
The application form on its face did not require the signature of Mr Marrama to be witnessed; and there was nothing to indicate that the signature had been witnessed by the respondent or anybody else.
On the back of a photograph lodged with the application the respondent had written:
"I certify this to be a true photograph of Vincenzo Marrama."
Below these words appeared the signature of the respondent.
In fact the photograph was not that of Mr Marrama but of a man called Carmello Corsino, whom it would appear used the passport, which was obtained pursuant to the application, to leave Australia in September 1984. He had earlier been arrested and charged with heroin trafficking offences. On 2 November 1984 he failed to answer his bail. A warrant for his arrest is still outstanding.
As mentioned above the form of "certification regarding applicant" states amongst other things that, to the best of the knowledge and belief of the person giving the certification, the statements made by the applicant for passport in the form are true. Those statements include in this case the following:
. the name of the applicant for passport was Vincenzo Marrama;
. he was born in Corfinio, L'Aquila, Italy on 5 April 1944;
. he had been married. His mother's maiden name was Gizzi;
. he was 167 centimetres in height;
. he lived at 4 Bailey Court, Campbellfield, 3061;
. that the signature was that of the applicant, Vincenzo Marrama.The certification that the accompanying photograph was that of Vincenzo Marrama was not based on information and belief. It is a statement by the appellant that it is in fact a photograph of Vincenzo Marrama.
The evidence before the Magistrate was that Mr Marrama was in fact not 167 centimetres in height, but 180 centimetres. There was no evidence as to the height of Carmello Corsino.
The appellant was interviewed by police. A record of interview was tendered before the Magistrate, but not produced before the primary Judge. The answers were described by the Magistrate as "largely no comment answers". It was not suggested before the Magistrate or in this Court at first instance or on appeal that the record of interview contained any relevant admissions.
The Magistrate's jurisdiction to hear the application for committal for trial of the appellant was derived from the Magistrates' Court Act (1989) (Vic) ("the Victorian Act of 1989"), s. 56 and the Judiciary Act 1903, s. 68, the alleged offence being against a law of the Commonwealth, namely, the Passports Act.
The test which it was incumbent upon the Magistrate to apply is that prescribed by the Victorian Act of 1989, s. 56, Schedule 5, clause 11(2), namely:
"At the conclusion of the evidence for the prosecution and evidence for the defence, if any, the Court must:
(a) if in its opinion the evidence is not of sufficient weight to support a conviction for the offence with which the defendant is charged, order the defendant to be discharged; or
(b) if in its opinion the evidence is of sufficient weight to support a conviction for the offence with which the defendant is charged, commit the defendant for trial and must -
(i) remand the defendant in custody until trial; or
(ii) grant bail until trial."
As the intent of the person charged with an offence under s. 10(1)(b) of the Passports Act is a necessary ingredient, submissions were made to the Magistrate directed to the question of intent, namely, whether there was evidence on which a jury could find that the appellant had knowingly made what was admittedly a false or misleading statement in support of Mr Marrama's application. The Magistrate made a ruling in these terms:
"... It seems to me that it is clear that the photograph on the hand-up brief is not that of Mr Marrama. It seems to me it is clear that it is of some other person whose name has been used here, Corsino.
It cannot be had both ways and I am satisfied that it would seem as if Mr Abbotto's situation is that if he was presented by Corsino with this document then it cannot have been signed by Mr Marrama in his presence. It was signed by Marrama, that is quite clear. The certification is not correct and I think it falls to him, it is an explanation which if there is one, it seems to me that it is very unlikely that there is but if there is an explanation it is entirely within his own province. There are matters which you can go so far but they are only capable of explanation and innocent explanation from the mouth of the person. I do not see anything of that nature here. It seems to me that if the document was not signed in front of him, which clearly it was not, that it may have been presented by Corsino or else it may have been the whole thing was a complete scam in any event but, it seems to me, I am satisfied that there is evidence of sufficient weight which a jury properly instructed could proceed to consider and may come to a conclusion of guilt." (94)
A request was made on behalf of the respondent pursuant to s. 13 of the ADJR Act for a statement of reasons from the Magistrate in respect of his decision. These were subsequently provided and stated so far as is relevant:
"The defendant Abbotto is charged with 'knowingly was concerned in the making of a false statement in writing in support of an application by another person for an Australian Passport contrary to Section 10(1)(b) of the Passport Act 1938.
The matter proceeded by way of hand-up-brief and there was no cross examination of witnesses at all.
Clearly on the evidence the defendant signed the application for passport and certified as to the contents and further signed the photographs and certified accordingly.
It is equally clear on the evidence that the photograph is not that of Vincent Marrama the person who is named as the applicant for passport. Further it is equally clear that the signature on the 'application of the applicant' is that of the person known as Vincent Marrama. It follows that the defendant has certified that the person in the photograph (who is in fact one Corsino) was Vincent Marrama a person whom he had known personally for two years. Clearly he was not.
On the face of it there is obviously not only evidence of sufficient weight but there is a strong case against the defendant. The defendant has in a recorded interview, with a few exceptions, given largely no comment answers. He did not give evidence at the committal hearing.
If there is an innocent explanation no hint of it has been raised.
I find therefore that there is evidence of sufficient weight for the defendant to be committed for trial."
The primary Judge held that the Magistrate's decision involved an error of law, namely, that the evidence before the Magistrate was not of sufficient weight to support a finding of guilt because it did not exclude an hypothesis consistent with innocence that the respondent had signed the certification on the photograph and the application form not knowing that they were false. His Honour said that a jury could not be satisfied beyond reasonable doubt that this hypothesis was not open. His Honour said that another way of expressing the point was that the Magistrate failed to take a relevant consideration into account, namely, whether the respondent's acts were done with the intention prescribed by the Passport Act.
His Honour found that the Magistrate also committed a further error of law by taking into account an irrelevant consideration, namely, that he used the respondent's exercise of his right to be silent at the committal to assist the drawing of an inference of guilt and that this was contrary to law. His Honour relied for this finding in particular upon the final three paragraphs of the Magistrate's reasons as expressed in the s. 13 statement, set out earlier.
His Honour therefore exercised the Court's powers to intervene in the committal process and ordered that the decision of the Magistrate committing the respondent for trial be quashed and set aside.
The test defining the satisfaction which a Magistrate must have before committing a person for trial is expressed in different terms in legislation relating to committal proceedings in the States and Territories of Australia. For example, the expression previously contained in s. 56 of the Magistrates' (Summary Proceedings) Act 1975 (which preceded the Victorian Act of 1989) as to the satisfaction which a justice should have before committing for trial was "a strong or probable presumption of guilt". The Court of Appeal of New South Wales said in Wentworth v Rogers (1984) 2 NSWLR 422 with respect to s. 41(6)(b) of the Justices Act 1902 (NSW) that whether there is "sufficient evidence to warrant the defendant being put upon his trial for an indictable offence" (the language of the statute as it then stood) is answered by the same test as is applied to determine whether there is a "prima facie case" established by the evidence of the prosecution. Following Wentworth v Rogers, s. 41(6)(b) was amended and the standard of sufficiency altered so that the Magistrate is required to discharge the defendant if he is of the opinion that "a jury would not be likely to convict" him, but if not of that opinion to commit him for trial. This provision was considered by the Court of Appeal of New South Wales in Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397.
Section 91 of the Magistrates' Court Ordinance 1930 (ACT), although cast in different language from s. 11 of the Victorian Act of 1989, nevertheless uses the test of sufficiency of evidence to warrant the accused person being put upon his trial. Section 61 of the Justices Act 1959 of Tasmania uses the same test of sufficiency, as does s. 109 of the Justices Act (South Australia) 1921, s. 106 of the Justices Act 1902 of Western Australia, s. 104(2) of the Justice Act 1886 (Qld) and s. 109 of the Justices Act 1928 (Northern Territory), although the language of the sections of the various State and Territorial statutes differs to some degree, one from the other.
The researches of counsel did not reveal any reported cases directly concerning the test to be applied by Magistrates under s. 11(2) of the Victorian Act of 1989 which requires that the Magistrate conducting a committal, at the conclusion of the evidence for the prosecution and the evidence for the defence, should not commit the person for trial unless in his opinion the evidence is of sufficient weight to support the conviction.
In Forsyth v Rodda (1988) 37 A Crim R 50 Wilcox J. considered the equivalent phrase formerly contained in s. 59(7) and (7A) of the Magistrates' (Summary Proceedings) Act 1975 (Vic). Section 59 dealt with the procedure to be followed at committal proceedings where the accused person did not plead guilty to the charge before the Magistrate but made a statement in answer to the caution administered to him. Subsection (7) and (7A) provided:
"(7) If after hearing all the oral evidence and reading any statements, documents and exhibits admitted in evidence under s. 46 or s. 47, the Magistrate is of opinion that the evidence is not of sufficient weight to support a conviction for the offence with which the accused person is charged, the Magistrate must if the accused person is in custody immediately order that the accused person be discharged.
(7A) If after hearing all the oral evidence and reading any statements, documents and exhibits admitted in evidence under s. 46 or 47, the Magistrate is of opinion that the evidence is of sufficient weight to support the conviction, the Magistrate must direct that the accused person be tried for the offence at the next sittings of the Supreme Court or County Court."
His Honour said at 68:
"... a set of facts may give rise to competing inferences. Where there are competing versions of the facts or competing inferences, the tribunal of fact has to choose between them. A hypothesis which is open to the jury, as a matter of law, may be rejected by them as a judgment upon the facts. The jury may disbelieve the evidence which gives rise to the hypothesis; or they may be unpersuaded that they ought to draw a particular inference from proved facts. Only in a case where the jury are unable ultimately to exclude the version of the facts, or the inference, which is consistent with innocence, does the obligation to acquit arise."
His Honour then proceeded to state what the Full Court of the Supreme Court of Victoria had said in Re Attorney-Generals Reference (No. 1 of 1983) (1983) 2 VR 410 at 415-416 in these terms:
"It is always a question for the jury whether a reasonable doubt exists as to the guilt of the accused and ... in a case based on circumstantial evidence, the necessity to exclude reasonable hypotheses consistent with innocence is no more than an application for that class of case of the requirement that the case be proved beyond reasonable doubt."
Wilcox J., having cited this passage, said:
"I think that the amendments to s. 59 were addressed to a different problem altogether. As appears from the Attorney-General's speech (Second Reading Speech of the then Attorney-General with respect to the Magistrates (Summary Proceedings) Bill 1975 (Vic)), there was a perception that people were sometimes committed for trial upon evidence so weak that the prospects of a conviction was minimal, but with a significant strain on the persons involved in the trial and a cost to the community. The test of "sufficient weight" was designed to allow Magistrates to stop those cases at a preliminary stage. For that purpose the Magistrate was empowered to make some assessment of credibility and to consider the strength of the prosecution case, put at its highest. But I do not think that it was intended, in a case where the prosecution case was credible and - upon one view of the facts - demonstrated a strong case against the accused, that Magistrates should decline to commit for trial just because - on another view of the facts - the proper course for the jury would be to acquit."
On appeal from the judgment of Wilcox J. to a Full Court of this Court, reported in (1989) 87 ALR 699, in a judgment of the Court their Honours (Sheppard, Morling and Gummow JJ.) said at 721:
"Counsel also claimed that the Magistrate was bound to discharge the appellant because he found that there were two competing inferences open, one consistent with guilt and the other consistent with innocence. In counsel's submission, that should have led him to discharge the appellant.
We think that the submission is answered by part of what the Magistrate said in the passage quoted above from his decision. He said that, on the present state of the evidence, he was satisfied on the one hand that a reasonable jury could be satisfied that there were reasonable hypotheses consistent with the appellant's innocence. But, on the other, that he was satisfied that a jury could be satisfied beyond reasonable doubt that there were no hypotheses reasonably consistent with his innocence."
These passages from the judgments of the Full Court and of Wilcox J. in Forsyth v Rodda are in my opinion applicable to the question which arises in this case. They are authorities for the proposition, with which I agree, that a Magistrate conducting a committal, having heard the evidence for the prosecution and for the defence, and having formed the opinion that there are two hypotheses open on the material before him, one consistent with guilt and the other with innocence, is not necessarily bound to discharge the defendant.
The task of a committing Magistrate is essentially to sift the wheat from the chaff: cases so weak that a jury properly instructed could not possibly convict the defendant and cases where it could. It is not the task of a Magistrate conducting a committal proceeding to assume the role of the jury at a criminal trial. At the conclusion of the evidence adduced on a criminal trial for both the prosecution and the defence a number of inferences may be open to the jury consistent with guilt or innocence. Some may be stronger than others; each is essentially a matter for the jury to consider in the course of its deliberations when assessing whether the defendant is guilty or not guilty of the offence with which he has been charged. If a Magistrate was obliged to discharge a defendant whenever an hypothesis was reasonably open on the evidence consistent with his innocence, albeit that another hypothesis was consistent with his guilt, it is difficult to imagine a case where there ever would be a committal for trial of a defendant as there are very few sets of facts or circumstances which cannot admit at least in theory of a possible explanation consistent with innocence. An inference from the facts consistent with guilt may be strong or weak in the eyes of the Magistrate and so may an inference consistent with innocence. The conclusion by the Magistrate that there are two competing inferences open, one consistent with guilt and the other with innocence, cannot necessarily require that the accused be discharged. This conclusion is not only supported directly by the Full Court in Forsyth v Rodda; it is consistent also with the language of s. 11(2) of the Victorian Act of 1989 itself and in accord historically with the role of a Magistrate conducting committal proceedings.
The argument before the primary Judge confused the duty of a Magistrate in a committal with the function of a judge and jury on the trial of an accused. This appears to have led his Honour to impose a stricter test upon a Magistrate conducting a committal than applies to the trial of the accused.
In Re Attorney-General's Reference, a reference by the Attorney-General of Victoria of certain points of law to the Full Court of the Supreme Court of Victoria, the Full Court said at 414:
"The second question in substance asks whether if at the close of the Crown case inferences of fact could be properly drawn which were consistent with the innocence of the accused and other inferences of fact could equally properly be drawn which were consistent with the guilt of the accused, the trial Judge is bound or entitled to direct the jury to acquit the accused. Again treating the word 'direct' as including 'advise' we should have thought that the question admitted of only one answer. Although the formulation of the question may be criticised in a sense, it will be difficult to frame an hypothesis that more clearly raised a question for the jury. The question asked should also be answered that as a matter of law the trial Judge was neither so bound nor so entitled."
In Doney v The Queen (1990) 171 CLR 207 the High Court said at 214-5:
"It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberation and that evidence is capable of supporting a verdict of guilty the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, will not sustain a verdict of guilty."
These statements with respect to the conduct of the trial of an accused lead a fortiori to the conclusion that at a committal a Magistrate must not usurp the function of the jury and determine guilt or innocence; rather his task is to decide whether the evidence is or is not of sufficient weight to support a conviction for the offence with which the defendant has been charged. It is a task which necessarily involves a degree of evaluation of propositions consistent with guilt or innocence to determine whether a jury properly instructed could or could not convict the defendant upon the evidence at the trial if it remains in the form in which it is at the committal stage. The task of the Magistrate is one which he must determine in an objective manner; it is not for him to say whether a particular inference from the facts is more credible than another; that is the function in due course of the jury.
It is useful to bear in mind the oft cited passage from the judgment of the High Court in May v O'Sullivan (1955) 92 CLR 654 at 658:
"When, at the close of the case for the prosecution, a submission is made that there is 'no case to answer' the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law. Unless there is some special statutory provision on the subject, a ruling that there is a 'case to answer' has no effect whatever on the onus of proof, which rests on the prosecution from beginning to end. After the prosecution has adduced evidence sufficient to support proof of the issue, the defendant may or may not call evidence. Whether he does or not, the question to be decided in the end by the Tribunal is whether, on the whole of the evidence before it, it is satisfied beyond reasonable doubt that the defendant is guilty. This is a question of fact."
It is not therefore the task of the Magistrate when conducting a committal proceeding to conclude that the evidence is not of sufficient weight to support the conviction of the defendant simply because he thinks that there is or could be formulated a reasonable hypothesis consistent with the innocence of the accused; or, expressed another way, he should not form the view that if the decision on the facts were his and not that of the jury in due course, he would entertain a reasonable doubt as to the guilt of the accused.
The primary Judge found that the Magistrate erred when committing the respondent for trial because the evidence before the Magistrate was not of sufficient weight to support a conviction of the respondent in that it did not exclude an hypothesis consistent with his innocence, namely, that he had signed the certification on the photograph and the application form not knowing that they were false.
In my respectful opinion the primary Judge erred in that finding. The mere fact that an hypothesis exists which is consistent with innocence does not necessarily lead to the conclusion that the jury will entertain a reasonable doubt about the guilt of the defendant. The jury may take the view that such an hypotheses is unreasonable or absurd. It may take a different view of the facts such as to exclude such an hypothesis.
The facts which were not disputed in this case are as follows:
. the signature of the applicant for passport on the form of
application was the signature of Mr Marrama;
. the photograph accompanying the application form was not that of
Mr Marrama but of Mr Corsino;
. the respondent declared in support of the application that he had
known the applicant for the passport for a period of two years;
. the respondent declared that to the best of his knowledge and
belief the name of the applicant was Vincenzo Marrama and that other matters mentioned earlier relating to the applicant's birth and family were true including the fact that he was 167 centimetres tall and lived at 4 Bailey Court, Campbellfield;
. the passport was in fact used to leave Australia apparently by Mr
Corsino, a person accused of serious drug offences.
In these circumstances plainly there is an inference reasonably open to a jury entitling it to convict the respondent of the offence charged in the absence of an explanation consistent with the innocence of the respondent and accepted by the jury.
There is a possible inference open that the respondent signed the certification on the photograph and the application form not knowing that they were false; indeed, perhaps thinking that the person whom he knew as Mr Marrama was the person portrayed in the photograph. If this explanation is offered at the trial of the appellant then the jury may or may not accept it, but it is not for the Magistrate to discharge the appellant merely because there exists a theoretical possibility of this inference being accepted by a jury.
Counsel for the appellant argued before us that it is not permissible for a Magistrate conducting a committal proceeding to find an hypothesis consistent with innocence unless that hypothesis is open on the facts before him, a merely theoretical possibility is not sufficient. In my opinion such an absolute proposition goes too far. Certainly in most cases the Magistrate need have regard only to possible inferences consistent with innocence which are based on the evidence before him. But there may be some cases where the inference of guilt is so weak and the possible inference of innocence so strong that evidence in support of the latter is unnecessary. As at present advised this is the conclusion to which I have come, but it is not necessary to finally decide it in this case. It is apparent from the Magistrate's reasons given on 11 June 1991 and confirmed in the s. 13 statement that he regarded the case against the respondent as "strong", a finding that was plainly open on the evidence before him. In the absence of evidence to support a possible inference of innocence (for example, that the respondent genuinely believed that the man depicted in the photograph on the application for passport was the man known to him as Mr Marrama) it was not incumbent on the Magistrate to consider it. However, the point is of theoretical interest only because the Magistrate did in fact consider as one possibility that the document was "presented" to the respondent for his certification by Mr Corsino.
Counsel for the respondent made a further attack upon the Magistrate's committal of the respondent. He submitted that the Magistrate did not properly, or at all, weigh the evidence before him and examine possible inferences consistent with innocence unlike, so it was said, the Magistrate in Forsyth's Case who did engage in that task.
The answer to this argument is that, for the reasons already given, the Magistrate was not obliged in the absence of evidence to consider possible inferences consistent with innocence when the case consistent with guilt was in his view (correctly in my view) strong. Second, the transcript of the Magistrate's reasons for his decision given on 11 June 1991, admittedly brief and not entirely clear, show nevertheless that he did consider the possibility that it may have been Mr Corsino who "presented" the form to him, which is consistent with the possibility that the respondent believed Mr Corsino was Mr Marrama. In Forsyth's case the defendant elected to call evidence before the Magistrate consisting of character evidence from a large number of witnesses together with evidence from four barristers concerning the correctness of certain advice given by the defendant, a barrister. In Forsyth's case the question of whether a jury could take either of two views about the genuineness of the advice given by the defendant in two conferences which he held, one consistent with guilt and the other with innocence, had their foundation in the evidence which was before the Magistrate. The present case stands in sharp contrast as there was no foundation in the evidence to suggest any of the hypotheses alleged to be consistent with innocence. That is not to say that at a trial evidence may not be led of facts consistent with the hypothesis of innocence, but no such evidence was led before the Magistrate, so that he was asked to engage in a theoretical exercise when determining if an hypothesis of innocence was open.
A further criticism of the Magistrate's approach and findings was that he treated the respondent's exercise of his right to remain silent to assist the drawing of an inference of guilt. This is not the correct analysis of the Magistrate's statements. The s. 13 statement is a one page document. It is set out earlier, but it is useful to repeat the last portion of it which reads as follows:
"On the face of it there is obviously not only evidence of sufficient weight but there is a strong case against the defendant. The defendant has in a recorded interview, with a few exceptions, given largely no comment answers. He did not give evidence at the committal hearing.
If there is an innocent explanation no hint of it has been raised.
I find therefore that there is evidence of sufficient weight for the defendant to be committed for trial."
The Magistrate was not inferring likely guilt from the respondent's "largely no comment answers" given at his earlier interview or from the fact that he remained silent at the committal proceedings. The Magistrate was simply saying that the case against him was strong and that there was no evidence in support of the respondent's case consistent with an innocent explanation. The statement "I find therefore that there is evidence of sufficient weight for the defendant to be committed for trial" is merely the conclusion which he drew from all that preceded it, not a conclusion from the absence of an innocent explanation.
As the Full Court of this Court said in Forsyth's Case at 722:
"... this Court in numerous judgments has emphasised that it is the substance of matters which will be looked at and that the form of language used by members of the administration and by tribunals will not be studied or sifted in a way that is destructive of the administrative process. The Court takes a broad and constructive view of decisions and allows for the fact that language used in reasons may have been better expressed or may reveal gaps in a chain of reasoning which need to be filled."
It follows in my opinion that the appeal should be allowed. This will have the effect of confirming the Magistrate's decision to commit the respondent for trial.
It is not necessary to consider other arguments advanced before us concerning the circumstances in which this Court should exercise its power to review a Magistrate's decision in respect of committal proceedings.
I would allow the appeal, set aside the orders of the primary Judge and order that the application for review be dismissed and that the respondent pay the appellant's costs of the proceedings at first instance and of this appeal.
JUDGE2
Section 10 of the Passports Act 1938 ("the Passports Act") creates various offences, the penalty for which is a fine or imprisonment for two years. In particular, it is an offence for a person knowingly to make any false or misleading statement, whether orally or in writing, in support of an application by another person for an Australian passport, or for a renewal or endorsement of an Australian passport; para. 10 (1) (b). An offence against s. 10 is an indictable offence; see s. 11.
The appellant, the informant in the proceedings described below, is a detective senior constable who, on 15 October 1990, charged the respondent, Mr Abbotto (who is a solicitor) with an offence under s. 10. On 11 June 1991, a magistrate, sitting in the Magistrates' Court in Melbourne, made an order committing the respondent to stand trial at the County Court sitting at Melbourne in respect of the charge that he was, on or about 29 June 1984, knowingly concerned in the making of a false statement in writing in support of an application by another person for an Australian passport, contrary to s. 10 (1) (b) of the Passports Act. The decision of the magistrate was a decision to which the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") applied: Lamb v Moss (1983) 76 FLR 296.
The Judiciary Act 1903 ("the Judiciary Act") provides that the laws of each State respecting the arrest and custody of offenders or persons charged with offences, and the procedure for their examination and their commitment for trial on indictment, shall apply, so far as they are applicable, to persons who are charged with offences against the laws of the Commonwealth committed within that State; s. 68 (1) (b). The several courts of a State exercising jurisdiction with respect to the examination and commitment for trial on indictment of offenders or persons charged with offences against the laws of the State shall have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth committed within the State; sub-s. 68 (2) and see The Queen v Murphy (1985) 158 CLR 596 at 617-8. The statutes of the several States respecting commitment for trial on indictment are not expressed in the same terms. This case is concerned only with the law of Victoria as it is picked up by federal law.
Sub-section 56 (2) of the Magistrates' Court Act 1989 (Vic.) ("the 1989 Act") was made applicable to the committal proceedings by s. 68 of the Judiciary Act. The sub-section states that a committal proceeding must be conducted in accordance with Schedule 5 to that Act. Schedule 5 is headed "Provisions Applicable to Committal Proceedings". Paragraph 1 provides for the use of what it calls a "hand-up brief procedure". This was followed in the present case. Paragraph 11 (2) of Schedule 5 states:
"11. (2) At the conclusion of the evidence for the prosecution and evidence for the defence, if any, the Court must -
(a) if in its opinion the evidence is not of sufficient weight to support a conviction for the offence with which the defendant is charged, order the defendant to be discharged; or
(b) if in its opinion the evidence is of sufficient weight to support a conviction for the offence with which the defendant is charged, commit the defendant for trial and must -
(i) remand the defendant in custody until trial; or
(ii) grant bail until trial."
At the conclusion of the hearing on 11 June 1991 in respect of the charge against the respondent, the magistrate declared that he was quite satisfied that there was evidence of sufficient weight which a jury, properly instructed, could proceed to consider and come to a conclusion of guilt.
On 3 July 1991, the respondent applied to this Court under the ADJR Act for an order of review of the decision of the magistrate committing him to stand trial. This appeal is brought from the decision of the primary Judge (Heerey J.) allowing that application, and ordering that the decision of the magistrate "be quashed and set aside".
Three principal issues were raised by the appellant. The first concerned the jurisdiction of this Court. His Honour accepted a submission by the appellant that the jurisdiction conferred by the ADJR Act upon this Court to review decisions of magistrates to commit defendants for trial is a discretionary one, which is to be exercised sparingly and only in the most exceptional cases. The primary Judge reviewed the relevant authorities, and concluded that the case before him was one which satisfied those criteria.
The matters to which his Honour referred included the following:
(a) the primary facts before the magistrate were simple, and an extensive review of the evidence before the magistrate was not involved, in contradistinction to cases such as Forsyth v Rodda (1989) 87 ALR 699 where the committal hearing had extended over 150 days,
(b) review was sought of the order made at the final stage of the committal proceeding, not in respect of intermediate steps (as to which the existence of the jurisdiction itself under the ADJR Act would require consideration after Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321), and
(c) if the applicant's case for review were made out, there would be public and personal utility in avoiding a trial which could not in law lead to a conviction.
Upon the appeal, counsel for the appellant challenged that branch of the decision, but devoted more attention to his attack upon the substantive questions concerning the grounds upon which the order of review was made. As will appear, in my view, the appeal should succeed on this point and the application should have been dismissed by his Honour. But I should indicate that I would agree with that part of the reasoning of the primary Judge which I have set out above and which led him to hold that the present was a proper case for the exercise for jurisdiction under the ADJR Act. That brings me to the second, and principal, issue.
In the present matter, the substance of the application for an order of review was that the magistrate had committed reviewable errors of law in his application of the 1989 Act and that he had failed to take relevant considerations into account, within the meaning of s. 5 of the ADJR Act. In particular, the primary Judge found reviewable error in the application by the magistrate of the phrase "the evidence is of sufficient weight to support a conviction" in the Victorian legislation.
In Forsyth v Rodda (1988) 37 A Crim R 50 (affirmed (1989) 87 ALR 699) Wilcox J. considered the Victorian legislation as it then stood in the Magistrates (Summary Proceedings) Act 1975 (Vic.), after amendment in 1986. Sub-section 59 (7A) provided:
"59. (7A) If after hearing all the oral evidence and reading any statements, documents and exhibits admitted in evidence under section 46 or 47, the magistrate is of opinion that the evidence is of sufficient weight to support a conviction, the magistrate must direct that the accused person be tried for the offence at the next sittings of the Supreme Court or County Court."
The expression "the evidence is of sufficient weight to support a conviction" is repeated in para. 11 of Schedule 5 of the 1989 Act.
We were told by counsel that the practice in Victoria has been to treat as applicable to the current legislation what was said by Wilcox J. in Forsyth v Rodda in relation to the legislation in its earlier form. We were also told that there was no other authority of direct assistance in construing the words "sufficient weight".
It then becomes a matter of considering the construction placed upon the Victorian legislation by Wilcox J., the treatment by the primary Judge of the decision of the magistrate, and the criticisms directed by the appellant to the reasoning of the primary Judge.
Before the magistrate, the following facts were not in dispute. In an Australian passport application, dated 29 June 1984, the signature of the applicant appearing thereon was the true signature of one Vincenzo Marrama. Accompanying the application were two photographs, one of which was to be placed in the passport and sealed under plastic. The other photograph had endorsed on it the statement by the respondent:
"I certify this to be a true photograph of Vincenzo Marrama (signed) Mario Abbotto."
On the application form, the respondent also stated his profession to be that of a solicitor, gave his firm's address, and declared that he had known Vincenzo Marrama personally for a period of two years. The respondent placed his signature opposite the statement:
"To the best of my knowledge and belief the statements made by the applicant in this form are true and the signature on the application is that of the applicant. I have endorsed the back of one of the accompanying photographs of the applicant and his/her child/ren."
The statements made by the applicant in the form and supported by the declaration I have set out included the following:
The applicant's name was Vincenzo Marrama. He was born in Corfino, Italy, on 5 April 1944. He had been married.
His mother's maiden name was Gizzi. He was 167 cm tall.
He lived at 4 Bailey Court, Campbellfield (in Victoria).
The passport issued upon the application was used to leave this country, apparently by one Corsino, a person accused of serious drug offences. A warrant for the arrest of Corsino is still extant.
Before the magistrate, there were no relevant admissions. The prosecution witnesses were not cross-examined. No evidence was called by the respondent.
In response to an application by the respondent, the magistrate provided a statement in writing pursuant to s. 13 of the ADJR Act. This statement was in longer form than the oral statement in which the magistrate gave his ruling on 11 June 1991. The transcript of proceedings before the magistrate on that day makes it plain that what was debated before him was the sufficiency or otherwise of the evidence as to the issue of the knowledge of the respondent. The references in the s. 13 statement (set out below) to the possibility of an innocent explanation are, in my view, to be understood as referring to the possibility that in giving his certification the respondent was acting under some misapprehension rather than pursuant to a conscious deception to whic privy.
Omitting formal parts, the s. 13 statement is as follows:
"The defendant Abbotto is charged with 'knowingly was concerned in the making of a false statement in writing in support of an application by another person for an Australian Passport contrary to Section 10 (1) (b) of the Passport Act 1938.'
The matter proceeded by way of hand-up brief and there was no cross examination of witnesses at all.
Clearly on the evidence the defendant signed the application for passport and certified as to the contents and further signed the photographs and certified accordingly.
It is equally clear on the evidence that the photograph is not that of Vincent Marrama the person who is named as the applicant for passport. Further it is equally clear that the signature on the 'application of the applicant' is that of the person known as Vincent Marrama. It follows that the defendant has certified that the person in the photograph (who is in fact one Corsino) was Vincent Marrama a person whom he had known personally for two years. Clearly he was not.
On the face of it there is obviously not only evidence of sufficient weight but there is a strong case against the defendant. The defendant has in a recorded interview, with a few exceptions, given largely no comment answers. He did not give evidence at the committal hearing.
If there is an innocent explanation no hint of it has been raised.
I find therefore that there is evidence of sufficient weight for the defendant to be committed for trial."
The crucial passage in the reasoning of the primary Judge which led to the order "to quash and set aside" the decision of the magistrate, was as follows:
"In a circumstantial case, a jury may be able to draw an inference of guilt to the requisite standard from a combination of facts, none of which viewed alone would support the inference: Shepherd 170 CLR at pp. 581, 592. However, in the present case the combination of the photograph endorsement with the certification on the passport application probably points in the opposite direction. If, as is admitted to be rationally conceivable, Corsino deceived Mr Abbotto as to the photograph, it is the more likely that he performed a similar sort of deception on the same target in connection with the passport application form . . . Therefore, in my opinion the evidence was not of sufficient weight to support a conviction because it did not exclude the hypothesis consistent with innocence that Mr Abbotto had signed the certification on the photograph and the application form not knowing that they were false. A jury could not in my opinion be satisfied beyond reasonable doubt that this hypothesis was not open.
Thus an error of law has been made out in that a 'no evidence' submission has been wrongly rejected. . . . The error might also be characterised in administrative law terms as failing to take a relevant consideration into account, viz. whether Mr Abbotto's acts were done with the intent prescribed by the statute."
The primary Judge did not consider the passage in Forsyth v Rodda supra at 67-9, in which Wilcox J. expressed the view that the introduction of the expression "sufficient weight" into the Victorian legislation in 1986 was addressed to a perception by the Parliament that people sometimes were committed for trial upon evidence so weak that the prospec onviction was minimal, but with the significant strain on the persons involved a ial and a cost to the community. His Honour said:
"The test of 'sufficient weight' was designed to allow magistrates to stop those cases at the preliminary stage. For that purpose the magistrate was empowered to make some assessment of credibility and to consider the strength of the prosecution case, put at its highest. But I do not think that it was intended, in a case where the prosecution case was credible and - upon one view of the facts - demonstrated a strong case against the accused, that magistrates should decline to commit for trial just because - on another view of the facts - the proper course for the jury would be to acquit. Had the legislature intended to make so fundamental a change in accepted procedures as to substitute the magistrate for the jury in the large percentage of cases in which there are competing views of the facts, or competing hypotheses as to guilt or innocence, it might have been expected to say so in clear terms."
Accordingly, Wilcox J. rejected the submission that the words "sufficient weight" indicated that the magistrate must form an opinion as to the probability of conviction. His Honour observed that the argument equated a finding that a particular conclusion is open to a tribunal of fact with a finding of that fact.
Counsel for the appellant submitted that the present case was on all fours with Forsyth v Rodda in that there were competing inferences open as to the existence of a necessary mental element of the offence alleged against the respondent.
Counsel complains, with considerable cogency, that the primary Judge, in the course of deciding whether the magistrate had committed an error reviewable under the ADJR Act in his committal of the respondent, himself fell into error by confounding the respective functions of the magistrate upon a committal proceeding and those of the judge and jury at a trial. The appellant submitted that at a trial the trial judge would not be satisfied on the material before the magistrate that the case should be withdrawn from consideration of the jury. The trial judge would not be so satisfied because there was evidence capable of sustaining a guilty verdict. The result, it was submitted, of the reasoning of the primary Judge in the present case was that the magistrate would be required to apply a stricter test than that which would be applied by a judge in the course of a trial.
In Doney v The Queen (1990) 171 CLR 207, five members of the High Court in their joint judgment said:
"It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty."
It is important for the purposes of this appeal to bear in mind the distinct functions of (i) the magistrate upon a committal proceeding (governed here by the 1989 Act), (ii) the judge and jury at the trial (including such matters as the proper direction to be given in cases resting upon circumstantial evidence, something dealt with in Shepherd v The Queen (1990) 170 CLR 573), and (iii) a court of criminal appeal (something again governed by statute in the various States). In relation to the connection between (ii) and (iii) their Honours said in Doney v The Queen supra at 215:
"It is necessary only to observe that neither the power of a court of criminal appeal to set aside a verdict that is unsafe or unsatisfactory . . . nor the inherent power of a court to prevent an abuse of process . . . provides any basis for enlarging the powers of a trial judge at the expense of the traditional jury function. The power of a court of criminal appeal to set aside a verdict on the ground that it is unsafe or unsatisfactory, like other appellate powers, is supervisory in nature. Its application to the fact-finding function of a jury does not involve an interference with the traditional division of functions between judge and jury in a criminal trial. Nor does the existence in a trial judge or a court of powers to stay process or delay proceedings where the circumstances are such that the trial would be an abuse of process."
Counsel for the appellant submitted, and I accept, that in accordance with the reasoning in Forsyth v Rodda, the magistrate need not consider whether a jury should or would be satisfied beyond reasonable doubt, but merely whether a jury could be so satisfied. Further, (and contrary to the tenor of the remarks of the primary Judge) a jury can be satisfied to the necessary degree where there are competing inferences open, depending upon the view they take of the evidence and of what is or is not probable. It may be, as a matter at this stage (and before the magistrate) of pure speculation, that the respondent would contend at a trial that for two years or more the person depicted in the photograph had been known to him as Vincenzo Marrama. The existence of an hypothesis which is consistent with innocence does not mean that the jury necessarily would entertain a reasonable doubt as to the guilt of the respondent. The jury might not consider the hypothesis reasonable. It might take a different view of the facts so as to exclude that hypothesis.
It may be that in some committal proceedings in Victoria the magistrate should consider hypotheses consistent with the innocence of the accused which are speculative and not grounded in the evidence before him. But if such cases exist, the present, given the strength of the prosecution case, was not one of them.
Counsel for the appellant contends that, upon the material I have described earlier in these reasons, it is clear that the respondent certified a matter that was patently false, namely that the photograph was that of the person named in the application; further, the certification by the respondent as to his knowledge for two years of the person applying for the passport and the respondent's attestation of the genuineness of the signature as that of the applicant, suggest, in the absence of some other explanation, that the false certification of the photograph was made with knowledge of that falsity. The appellant submits that on this material, standing alone, a jury would be entitled to convict, and that the magistrate did not fall into error in committing the respondent for trial. It follows from what I have said above that I accept that submission.
There remains the third issue agitated on the appeal. This arises from the following passage in the judgment of the primary Judge:
"The concluding part of the Magistrate's reasons given under s. 13 seem to me to indicate that an essential element of his reasoning relied on the facts that the applicant gave 'largely no comment answers' to the police and did not give evidence at the committal hearing. The Magistrate commented that '(i)f there is an innocent explanation no hint of it has been raised'. He proceeded immediately to find 'therefore that there is evidence of sufficient weight for the defendant to be committed for trial' (emphasis added). These being formal considered reasons provided under the statutory obligation imposed by s. 13, I do not think it unfair to read them as containing the actual reasons which led him to the conclusion he reached. They were something more than . . . 'part of the factual backdrop'. The reasons given by the Magistrate make it clear that he used Mr Abbotto's exercise of his right to silence to assist the drawing of an inference of guilt. This was contrary to law."
In my view, it is quite inaccurate to describe the process of reasoning by the magistrate as one which involved the drawing by him of an inference of guilt. What the magistrate did was to perform the task required of him by the 1989 Act, namely the formation of an opinion as to whether the evidence was of sufficient weight to support a conviction so that the defendant should be committed for trial. In forming that opinion, the magistrate was bound by the terms of para. 11 (2) of Schedule 5 to take into account the evidence for the prosecution and that for the defence, if any.
In determining whether the evidence was of sufficient weight to support a conviction, the magistrate was entitled to take into account that the strong case against the respondent was not countered by any countervailing evidence. The magistrate was not determining in any final way the rights of the parties. His task was to determine whether the respondent should be sent to trial. At such a trial, the Judge and the prosecutor would not be at liberty to comment on the fact that the accused stood mute, if that proved to be the case: Crimes Act 1958 (Vic.) sub-s. 399 (3). But it would not follow that the jury at the trial would not be entitled to take such a circumstance into account. Indeed, there are various authoritative pronouncements to the effect that the jury would be so entitled; e.g. Bridge v The Queen (1964) 118 CLR 600 at 615.
But, in any event, the magistrate was not conducting a trial. In performing his function under para. 11 (2) of Schedule 5 of the 1989 Act, he was entitled to act on the footing that what, in his view, was already a strong case against the respondent was not weakened by any denial or explanation given by the respondent.
In my view, the appeal should be allowed with costs. In place of the orders of the primary Judge, the application for an order of review under the ADJR Act should be dismissed, with costs.
JUDGE3
I have had the benefit of reading in draft the Reasons for
Judgment of Lockhart and Gummow JJ. I agree with their reasons and with the orders proposed by them.
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