William Trevor Storer v Special Magistrate J Murphy and Ian Thomas Knight [1991] ACTSC 50; (1991) 104 FLR 303, 313 (19 July 1991)

SUPREME COURT OF THE ACT

WILLIAM TREVOR STORER v. SPECIAL MAGISTRATE J. MURPHY and IAN THOMAS KNIGHT
S.C. No. 270 of 1991
Administrative Law - Criminal Law
(1991) 104 FLR 303, 313

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Administrative Law - Administrative decisions judicial review legislation - committal proceedings - applicant seeking review of Magistrate's finding of a case to answer - respondent seeking summary dismissal of applicant's application for an order to review - discretion of court - source of jurisdiction.

Criminal Law - Jurisdiction, practice and procedure - prosecution - committal for trial by magistrate - Orders for Review under Administrative Decisions (Judicial Review) Act - order for review of finding of case to answer.

Lamb v. Moss and Another [1983] FCA 254; (1983) 49 ALR 533

Yates v. Wilson (1989) 168 CLR 338

Castles v. Briot and Others (1989) 19 ALD 153

Australian Broadcasting Tribunal v. Bond and Others [1990] HCA 33; (1990) 170 CLR 321

Carlin v. Thawat Chidkhunthod and Another (1985) 4 NSWLR 182

Osmond v.Public Service Board of New South Wales (1984) 3 NSWLR 447

Harper v. Costigan (1983) 50 ALR 665

Connor v. Sankey (1976) 2 NSWLR 570

Oceanic Sun Line Special Shipping Co. Inc. v. Fay [1988] HCA 32; (1988) 165 CLR 197

Cope Allman (Australia) Ltd. v. Celermajer and Another (1968) 11 FLR 488

Whim Creek Consolidated NL v. Colgan (1989) 17 ALD 577

HEARING

CANBERRA
19:7:1991

Counsel for the applicant : Mrs J. Storer (non-practitioner)

Solicitors for the applicant : Nil

Counsel for the respondent : Mr L. Katz

Solicitors for the respondent : Mr B. Taggart, DPP

ORDER

The application for an order for review filed on 26 April 1991 be permanently stayed.

DECISION

This is a motion for summary dismissal of an application seeking an order to review under s.5 of the Administrative Decisions (Judicial Review) Act 1989 (ACT) (the ADJR Act).
Nature of Application for Review

2. An application for an order to review was taken out by Mr William Trevor Storer acting in person by filing a document in court by leave on 26 April 1991. Further leave was given to amend the written application at the hearing on 5 July 1991. Mr Storer seeks a review of a decision or decisions of Magistrate Murphy sitting in the Magistrates Court on 4 April 1991. The transcript of that date is incorporated into the amended application and records the decision or decisions at pp 6 to 9 inclusive. The Magistrate stated that he found that there was a case to answer on thirteen charges brought against Mr Storer. The Magistrate had earlier found that there was no case to answer on charges brought against Mr Storer's wife.

3. Sub-s.10(1)(b) of the ADJR Act provides that an application to the Supreme Court for an order to review shall set out the grounds of the application. However, the amended application states only that "the grounds of the application are engrossed in the affidavit of the applicant". I have considerable doubt whether the amended application complies with the requirements of the ADJR Act. The affidavit of Mr Storer sworn 1 May 1991, which is the affidavit referred to in the amended application, is lengthy and consists mainly of argument and submissions. It is, however, possible to distil from the affidavit the grounds on which the application is brought.

4. Mr Storer has a speech difficulty and leave was given to him to be represented by his wife. In the circumstances I proceed on the assumption that the application is properly brought under sub-s.10(1)(b).
History of the Proceedings in the Magistrates Court

5. By the time of the Magistrate's decision or decisions Mr Storer was facing thirteen charges. Ten of the charges related to the obtaining of a cheque for $10,000 drawn on an account at the ANZ Bank held by a joint venture. A company controlled by Mr Storer was the project manager of the joint venture. The cheque was drawn in favour of that company. It was alleged that the drawing of the cheque arose from a fairly complicated series of events involving the use of false invoices and accounts prepared by Mr Storer.

6. There were three further charges which arose out of the alleged procurement by Mr Storer of a further cheque for $10,000, which was a bank cheque drawn on and by the Civic Advance Bank and payable to a firm of solicitors, allegedly for the purposes of a family law property settlement in which Mr Storer had an interest.

7. All charges related to offences under Part IV of the Crimes Act 1900 (NSW) in its application to the Australian Capital Territory (the Crimes Act 1900). Each of the charges carried a maximum sentence of 7 years or in some cases 10 years imprisonment. They were therefore punishable on indictment and the proceedings in the Magistrates Court commenced as a committal hearing under Part VI of the Magistrates Court Act 1930 (the Magistrates Court Act). It is a matter of some concern that the proceedings have taken so long. The hearing commenced on 12 February 1990 and submissions were made at the end of the prosecution case on 13 December 1990. On 4 April 1991 the Magistrate handed down his reserved decision on the sufficiency of the prosecution case. In relation to Charge No. 8913094, the Magistrate found that the charge was incorrectly drafted and discharged Mr Storer on that charge. However, he went on to formulate what he considered the correct charge should have been and that was that Mr Storer between 10 November and 21 November 1988 did dishonestly with a view to gain by Lansley Hayes and Storer Pty. Ltd., by deception, procure the execution of a valuable security, namely Civic Advance Bank Ltd. cheque, No.277477 in the amount of $10,000 payable to Maliganis Edwards and Johnson. The Magistrate then announced that in relation to that charge and the twelve remaining charges he was satisfied that on the evidence at that stage a jury properly instructed could find Mr Storer guilty of all charges.

8. The Magistrate then informed Mr Storer that he had a right to trial before a judge and jury, or alternatively, he could consent to the Magistrate hearing the matters.

9. In an apparent endeavour to assist Mr Storer by explaining to him the options that were available and the procedures which would be followed, the Magistrate said this:
"You have got a right to go for trial in the Supreme

Court. If you did that, well, I'd commit you forthwith and fix
bail and that's the end of the matter so far as this court. If
you want me to hear it, well, it will be another date, whatever
date is suitable. It is a matter for you, Mr Storer."

10. There was a further exchange between the Magistrate and Mrs Storer in which she asked for a written judgment. The Magistrate replied that he did not intend to give a written reason at that stage and would not do so until the end of the case. Mrs Storer asked whether Mr Storer could then proceed to the "second stage of the preliminary hearing and call evidence in defence". The Magistrate replied that he could do so but that it was unusual for evidence to be given at that stage if the matter was to go for trial. The Magistrate explained that Mr Storer was not precluded from giving evidence, but if he did so the evidence would be recorded and could be used at the trial. Mrs Storer then said, "I think that our thinking is that we would first go to the second stage of the preliminary hearing now and that we would have the matter dealt with in this Court". This indicated some confusion on her part. Once again the Magistrate asked Mrs Storer whether Mr Storer wanted the matter dealt with in the Magistrates Court. He rephrased the question by asking whether Mr Storer wished to seek summary jurisdiction. Mrs Storer gave an unequivocal affirmative answer. The Magistrate then stood the matter over to a date to be fixed.

11. On 11 April 1991 Mr Storer wrote to the Magistrate stating that he had been confused at the hearing on 4 April 1991 and wished the proceedings to continue as committal proceedings. Somewhat inconsistently with the wish so expressed, it was submitted on Mr Storer's behalf before me that the Magistrate had already committed him for trial, and it was the decision to commit for trial which was sought to be reviewed under the ADJR Act.
The Magistrate's Decision

12. It is quite clear, in my view, that the proceedings before the Magistrate reached only the stage contemplated in s.91 of the Magistrates Court Act. That section provides as follows:

"91. When all the evidence offered upon the part of the
prosecution against a person charged with an indictable offence
has been taken, the Court shall -
(a) if the Court is not of the opinion referred to in
paragraph (b), forthwith order the accused person, if in
custody, to be discharged from custody in respect of that
offence; or
(b) if the Court is of the opinion, having regard to
all the evidence before it, that the evidence is capable of
satisfying a jury beyond reasonable doubt that the accused
person has committed an indictable offence, proceed as
hereinafter provided."

13. The Magistrates Court Act then goes on to provide in sub-s.92(1) that where the Court is of the opinion that, having regard to the evidence for the prosecution, the evidence is capable of satisfying a jury beyond reasonable doubt that the accused person has committed an indictable offence, the Court is obliged to charge the accused person with the offence, and give the accused person the opportunity to say something in answer to the charge by using the words set out in the sub-section or words to the like effect. Whether or not the accused person makes a statement in reply to the question, the Magistrate is required by sub-s.92(3) to ask the accused person if he desires to give evidence or call any witnesses, and the accused person is entitled to give evidence or call evidence and the prosecutor is at liberty to cross-examine.

14. The next stage of the committal proceedings is provided for in s.94 and that is that when all the evidence for the prosecution and the defence has been taken, if the Court is not of the opinion that having regard to all the evidence before it that a jury would not convict the defendant of an indictable offence, it shall commit him to take his trial for the offence before the Supreme Court.

15. By sub-s.92(1A) the Magistrate is not required to charge the accused and proceed further as provided under s.92 and s.94 if he has decided to dispose of the case summarily pursuant to a law enforced in the Territory.

16. It is obvious from a perusal of the transcript in the Magistrates Court in the present case that the Magistrate tried to ascertain from Mr Storer or from Mrs Storer whether Mr Storer wished him to dispose of the matters summarily pursuant to s.477 of the Crimes Act 1900 which permits summary disposal of charges relating to offences punishable by imprisonment for a term not exceeding 14 years in the case of offences relating to money or other property and 10 years in any other case. The Court may hear and determine such a charge summarily if it is of the opinion that the case can be properly disposed of summarily and the defendant has consented to its being so disposed of.

17. Furthermore, s.22 of the Magistrates Court Act provides that in the case of an information with respect to an offence which is punishable either summarily or upon indictment if it appears to the Court upon the close of the case for the prosecution that the offence ought to be dealt with on indictment, the Court shall abstain from adjudication thereon and shall deal with the case for the purpose of committal for trial only.

18. The provisions of s.22 are mandatory. The decision whether or not the offence ought to be dealt with on indictment is to be made upon the close of the case for the prosecution. It is quite evident that in the present case the Magistrate sought to make a decision in compliance with the section and it seems that he made a provisional decision that the offence ought to be dealt with on indictment unless Mr Storer indicated that he wished the matter to be disposed of summarily. However, until Mr Storer indicated his wish in this respect, it would have been quite inappropriate for the Magistrate to proceed to charge and question the defendant in accordance with s.92 of the Magistrates Court Act. If and when Mr Storer indicated that he wanted the matter disposed of summarily, and the Magistrate formed the opinion that the case could properly be disposed of summarily, then s.92(1) of the Magistrates Court Act would not apply and the only appropriate course would be for the Magistrate to proceed to hear and determine the charges summarily.

19. A reading of the transcript indicates that this is exactly what has happened in the present case. It may have been confusing to Mrs Storer at the time and as the above account of the statutory provisions indicates, the situation is complex for one who is not used to it.

20. Although the defendant consented before the Magistrate to the matter being disposed of summarily, the Magistrate did not take any further steps to hear and determine the charge summarily and it is my view that when he resumes the hearing of the matter (as he is obliged to do), it is still open to him to make a decision one way or the other whether the case can properly be disposed of summarily under s.477(6)(b) of the Crimes Act. No doubt the Magistrate will take into account the fact that Mr Storer no longer wishes the matter to be disposed of summarily, if indeed that is still Mr Storer's wish by the time the matter resumes before the Magistrate.
Order to Review Committal Proceedings

21. As the Magistrate has not yet commenced to hear and determine the charge summarily, it is my view that the matter is still before him as a committal proceeding. For that reason alone Mr Storer's application to seek an order to review a decision in the committal proceedings faces considerable difficulty. There is an amount of case law on the subject. It is not necessary for me to review it all. A magistrate conducting a committal hearing is regarded as performing a ministerial, that is to say, an administrative function, although no doubt once he proceeds to dispose of charges summarily, he is performing a judicial function. In Lamb v. Moss and Another [1983] FCA 254; (1983) 49 ALR 533, a Full Court of the Federal Court of Australia dealt with an application for judicial review of a Magistrate's opinion that a prima facie case had been established on a charge of an offence under the Crimes Act 1914 (Cwlth). The relevant provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cwlth) (the Commonwealth Act) are identical to those in the ADJR Act under which the present application is brought and the statutory jurisdiction conferred on the Federal Court by the Commonwealth Act is virtually identical with that conferred on this Court by the ADJR Act. It was held that the decision in the committal proceedings was a decision under an enactment which was subject to review by the Court. The Federal Court discussed the principles for determining whether there was a discretion to refuse relief notwithstanding that a case for relief was shown. The judgment of the Federal Court proceeded at p 549 as follows:

"The application of these principles to the Act leaves
no doubt but that, once the jurisdiction of the court is
properly enlivened by a sufficient application, there is an
obligation on the court to entertain that application: cf R v.
Commonwealth Court of Conciliation and Arbitration [1949] HCA 33; (1949) 78
CLR 389 at 398. However, as has been noted, the existence of
that obligation is not inconsistent with a power in the court to
refuse relief notwithstanding that the statutory preconditions
to a grant of relief are satisfied. In our opinion, such a
discretion does exist under the Act, but that conclusion is not
solely dependent upon the language in which the court is given
power in s.16."

22. In relation to committal proceedings the Federal Court said as follows at p 546:

"It is sufficient for immediate purposes, to observe
that there is a considerable body of authoritative judicial
opinion that exceptional circumstances will generally be
required before a superior court will consider interfering in
committal proceedings, particularly at an interlocutory stage."

23. In Yates v. Wilson (1989) 168 CLR 338, an application for special leave to appeal from the Federal Court of Australia to the High Court was refused in relation to an attempt to obtain an order to review a decision to commit for trial. In delivering the judgment of the Court, Mason C.J. said at p 339:

"It would require an exceptional case to warrant the
grant of special leave to appeal in relation to a review by the
Federal Court of a magistrate's decision to commit a person for
trial. The undesirability of fragmenting the criminal process
is so powerful a consideration that it requires no elaboration
by us. It is a factor which should inhibit the Federal Court
from exercising jurisdiction under the Administrative Decisions
(Judicial Review) Act 1977 (Cth) and as well inhibit this Court
from granting special leave to appeal."

24. In Castles v. Briot and Others (1989) 19 ALD 153, another attempt to obtain an order to review a committal for trial, this time on the basis that the Magistrate had drawn too strong a facutal inference from part of the evidence, the Full Court of the Federal Court ruled that the primary judge was seriously in error in reviewing the whole of the voluminous evidence and arriving at a conclusion that there was no serious evidence upon which a properly instructed jury could reasonably find guilty intent. In the opinion of the Court, such a purely factual question should not have been the subject of review. At p 158 the Court said:

"We do not accept that the court, in exercising the
jurisdiction in question, has the task of general oversight of
procedure in committal hearings relating to Commonwealth
offences. In our opinion, it is unlikely that the discretion
will be properly exercised in favour of making an order of
review unless it be shown that the magistrate has made a
particular error in construing or applying the law under which
the applicant has been charged. As is shown by the remarks,
quoted below, of the High Court in Yates v. Wilson (1989) 88
ALR 583, even that may not be enough."

25. Finally, in Australian Broadcasting Tribunal v. Bond and Others [1990] HCA 33; (1990) 170 CLR 321, Mason C.J. confirmed that the decision of a magistrate in committal proceedings that a prima facie case had been established was a decision reviewable under the ADJR legislation. The Chief Justice went on to reiterate what he had previously said in Yates v. Wilson and to elaborate:

"Further, I agree that only in most exceptional
circumstances would it be appropriate to grant relief in respect
of a decision given by a magistrate in committal proceedings.
The delays consequent upon fragmentation of the criminal process
are so disadvantageous that they should be avoided unless the
grant of relief by way of judicial review can clearly be seen to
produce a discernible benefit: Yates v. Wilson."

Are There Exceptional Circumstances for Reviewing the Magistrate's Decision?

26. Insofar as I understand the arguments put on behalf of Mr Storer, they can be summarised and dealt with in the following way.

1. It was submitted that the Magistrate did not comply with
the requirements of the Magistrates Court Act and in particular
did not give Mr Storer the opportunity of giving or calling
evidence pursuant to s.92. In my view, it was unfortunate that
the Magistrate, at the commencement of the exchange between
himself and Mrs Storer following his announcement that he had
found a prima facie case, said that if Mr Storer indicated
that he wished to go to trial in the Supreme Court, the
Magistrate would commit him forthwith and fix bail. That
carried with it the implication that Mr Storer had no further
right of address or no right to give or call evidence, or if he
did, no matter what evidence he called, he would be committed
for trial. However, as soon as Mrs Storer said that Mr Storer
might wish to proceed to "the second stage of the preliminary
hearing", and "have some evidence in defence heard", the
Magistrate immediately rectified the error and plainly indicated
that Mr Storer might follow that course if he wished but it was
first necessary to decide whether or not Mr Storer wished to
have the matters disposed of summarily. Despite the initial
error, the Magistrate stated the position accurately and clearly.
2. It was submitted that in failing to give reasons for his
decision that a prima facie case had been established upon the
prosecution evidence, the Magistrate denied natural justice to
Mr Storer. There is no substance in this submission. Reasons
are not required to be given upon the finding of a prima facie
case. There is some authority for the proposition that a
magistrate should give reasons for committing for trial: see the
decision of O'Brien C.J. in Carlin v. Thawat Chidkhunthod and
Another (1985) 4 NSWLR 182. My view, however, is that that
decision is of doubtful validity. It was apparently influenced
by the decision in the Court of Appeal in Osmond v. Public
Service Board of New South Wales (1984) 3 NSWLR 447 which
was later reversed on appeal in the High Court, [1986] HCA 7; (1986) 159
CLR 656. The High Court authoritatively decided that the
absence of reasons for an administrative decision does not at
common law involve a denial of natural justice. In any event,
Carlin's case was not concerned with a finding of a prima facie
case made prior to the decision to commit for trial.
Furthermore, the obligation imposed by s.13 of the ADJR Act to
give reasons, if requested, for the making of an administrative
decision is excluded by paragraph (a) of Schedule 2 of the ADJR
Act in the case of decisions relating to the administration of
criminal justice. It would appear that the Magistrate's finding
of a prima facie case in committal proceedings
is such a decision: see Harper v. Costigan (1983) 50 ALR 665.
Finally, there is nothing in the Magistrates Court Act which
requires a magistrate to give reasons for finding a prima facie
case established in a committal hearing.
3. It was next submitted that the Magistrate had no power
to substitute a charge formulated by him for a charge which he
had dismissed. It is not necessary to consider this submission
in depth. Under the legislation in New South Wales a magistrate
has power to commit on any charge in respect of which a prima
facie case has been established: see Connor v. Sankey (1976) 2
NSWLR 570 at 611. The terms of s.94 of the Magistrates
Court Act oblige the Magistrate to commit a person to take his
trial "for the offence" when he is not of the opinion that a
jury would not convict the defendant of an indictable offence.
Other cases cited in argument on behalf of Mr Storer were not
to the point. However, most importantly for the purposes of the
present case, the Magistrate has found a prima facie case on
twelve other charges. The question whether or not the
Magistrate had power to add a thirteenth charge in substitution
for one he had dismissed, would be of possible practical
significance only if the Magistrate were to commit Mr Storer
for trial on the thirteenth charge alone. As that has not
happened and as there is no indication that it is likely to
happen, this Court should not consider any discretion it has in this
regard to interfere with the committal at this stage on this ground.
4. It was submitted that the Magistrate should not have
come to any conclusions of fact which would justify holding that
there was a prima facie case on any of the charges. Mr Katz,
for the applicant on the motion, the informant in the committal
proceedings, has taken me through a good deal of the evidence on
the transcript and the documentary material contained in some of
the exhibits. It is sufficient for me to say that it appears
that there was evidence before the Magistrate to justify
findings of fact to the effect that there was a prima facie case
upon each charge. Mrs Storer has indicated that she wishes, if
unsuccessful on the motion, to take me through other parts of
the transcript and to present argument that the Magistrate was
not justified in making the necessary factual findings. I bear
in mind the fundamental rule that for the purpose of ruling on a
prima facie case it is necessary to take the prosecution case at
its highest and that weaknesses in the evidence and
countervailing evidence are of little assistance, if any, in
deciding the question of whether or not a prima facie case is
established. More importantly, however, I pay heed to what has
been said in the authorities cited above and in particular in
Castles v. Briot to the effect that an application to
review a decision in a committal proceedings should not involve
review of the facts.

27. In these circumstances it is firmly established, in my view, that no exceptional circumstances have been shown on Mr Storer's behalf which would justify this Court in exercising its discretion to interfere in the committal proceedings.
Can the Application be Dismissed at this Stage?

28. The motion before the Court is for summary dismissal of the application seeking an order to review. It is not immediately clear that the Court has jurisdiction to make such an order of summary dismissal. That such an order may be desirable in circumstances such as those in the present case is well illustrated in the decision of Jenkinson J. in Currie v. Moloney (unreported, Federal Court of Australia, 27 February 1991). That was another "fruitless attempt" to obtain a review of a magistrate's decision to commit a person for trial on criminal charges of offences against Commonwealth laws. His Honour said at the end of his judgment as follows:

"In an appropriate case the Director of Public
Prosecutions could, if he thought it appropriate, move, as soon
as a proceeding of this kind is instituted, for an order of the
kind which is afforded by Order 20 Rule 2 of this court's rules
in an attempt to diminish, if not to eliminate, the degree of
interference with the ordinary processes of the criminal law
involved in cases of this kind."

29. Order 20 Rule 2 of the Federal Court Rules provides for summary disposal of proceedings. There is no equivalent of that rule in the Rules of the Supreme Court of the ACT. However, this Court is a superior court of unlimited jurisdiction and as such it has the inherent power of any such court to prevent an abuse of its process or to stay vexatious proceedings: see Oceanic Sun Line Special Shipping Co. Inc. v. Fay [1988] HCA 32; (1988) 165 CLR 197; Cope Allman (Australia) Ltd. v. Celermajer and Another (1968) 11 FLR 488.

30. In Whim Creek Consolidated NL v. Colgan (1989) 17 ALD 577, an application was made under the Federal Court Rules to strike out parts of an application for an order to review under the Commonwealth Act. Lee J. was of the opinion that there was inherent jurisdiction in the Federal Court to strike out portions of an application pursuant to the Commonwealth Act. However, Lee J. emphasised that before the Court would take the drastic step of striking out an application, it had to be shown that the applicant's case was so clearly untenable that it could not possibly succeed. I think, with respect, that that is the correct approach, but as far as the present case is concerned it is of little consolation to Mr Storer. As I have indicated for the reasons outlined above, I am firmly of the view that the application to review the Magistrate's decision that there was a prima facie case established against Mr Storer on all thirteen charges cannot possibly succeed. Although there is a discretion in this Court to grant relief in respect of the Magistrate's decision, it is unthinkable that in the circumstances and for the reasons given, this Court would exercise its discretion to interfere in what is the normal process of a criminal committal hearing.

31. In these circumstances, it would, in my view, be an abuse of the process of this Court to further entertain the application for an order for review. The appropriate order in the case of an abuse of process is to grant a stay rather than to order a summary dismissal. The formal order of the Court is that the application for an order for review filed on 26 April 1991 is permanently stayed. I shall deal with any question of costs which arises as a result of that order.