Re Michael Thomas Seymour v Attorney-General of the Commonwealth of Australia; Arthur Reidel and William Raymond Donaldson [1984] FCA 329; 57 ALR 68 / 4 FCR 498 (7 November 1984)

FEDERAL COURT OF AUSTRALIA

Re: MICHAEL THOMAS SEYMOUR
And: ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA; ARTHUR REIDEL and
WILLIAM RAYMOND DONALDSON
No. G169 of 1984
Administrative Law
[1984] FCA 329; 57 ALR 68 / 4 FCR 498

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Fox(1), Jenkinson(2) and Beaumont(3) JJ.

CATCHWORDS

Administrative Law - Judicial review - Decision of magistrate - Committal proceedings - tender of prejudicial evidence given in earlier proceedings - admission of such evidence - discretion to refuse relief.

Administrative Decisions (Judicial Review) Act 1974

Crimes Act 1914 - s.42.

Administrative Law - Judicial Review - Decision of magistrate to commit for trial - Factors relevant to exercise of discretion to refuse to make an order of review - Administrative Decisions (Judicial Review) Act 1977 (Cth). Consideration of the matters relevant to the exercise by the court of its discretion not to make orders of review upon an application to review a decision of a magistrate to commit the applicant for trial.

HEARING

1984, October 25; November 7. 7:11:1984
APPEAL

Appeal from judgment and orders of Fitzgerald J.

J M Neill and J Booth for the applicant.

B T Sully QC and H Shore for the respondents.

Solicitors for the applicant: Stuart Thom & Co.

Solicitor for the respondent: Australian Government Solicitor.
GFV

ORDER

1. The appeal be dismissed.

2. The appellant pay the respondents' costs of the appeal.

Appeal dismissed with costs

DECISION

I agree that the appeal in this matter should be dismissed. For the reasons given by Jenkinson and Beaumont JJ., it is not a case in which the Court should exercise its discretion to grant relief under the Administrative Decisions (Judicial Review) Act 1977.

Appeal against the dismissal of an application made under the Administrative Decisions (Judicial Review) Act 1977 for review of a decision that the appellant be committed for trial on a charge of conspiracy under s.42 of the Crimes Act 1914 (C'wlth).

The information was laid on 4 May 1982, charging a conspiracy in 1980; the appellant was committed for trial on 21 April 1983; the application for review was dismissed on 8 May 1984; the appeal was heard and dismissed on 25 October 1984. What follow are my reasons for concurring in the dismissal of the appeal.

The information alleged that the appellant had conspired with several others to obstruct the course of justice, "in that . . . . . . he was a party to an arrangement whereby" one of the conspirators "was released on surety bail of $20,000 under circumstances whereby the said sum was provided by" that conspirator.

At the examination of witnesses upon the conclusion of which the appellant was committed for trial (and to which I shall refer as the committal proceeding) the evidence relied upon as justifying his committal included testimony he had given at a previous examination of witnesses before a magistrate which had resulted in the committal of several persons for trial on charges of conspiracy to import into Australia prohibited imports. That testimony was, first, that the appellant had acted as solicitor for the vendor and the purchaser on the sale of land for $35,000 and had, at the direction of the vendor, paid $20,000 of the purchase price to a woman who with that sum had obtained a bank cheque which was accepted in satisfaction of the requirements as to surety in respect of the grant of bail to the vendor, who was one of those charged with the conspiracy to import prohibited imports, on that charge; and, second, that when he carried out the vendor's direction he believed that the money would be used in the way it was used to procure the vendor's release on bail. The $20,000 is that to which the information against the appellant refers.

On that evidence it is a good deal clearer that the sum of $20,000 paid in respect of the bail was "provided", in one sense of that word, by the vendor than that the particulars in the information for the offence with which the appellant was charged disclose the commission of that offence, or that the money was the subject of a gift (conditional or not), or of a loan, to the woman, or was recieved by her on trust or as an agent, or, as in R.v. Porter (1910) 1 K.B. 369, as security for the performance of an agreement by the vendor to indemnify the woman. If, as may be the case, it is of the essence of the offence charged that the agreement be for the commission of an act or acts which, if done, would result in the surety having a lesser economic interest in the performance of the condition of the recognizance than would a surety whose own wealth would be depleted by the amount of the bond in consequence of a failure in performance of the condition, then both the particulars of the charge and the evidence by which it is to be supported may require elaboration. (See Herman v. Jeuchner (1885) 15 Q.B.D. 561; Consolidated Exploration and Finance Company v. Musgrave (1901) 1 Ch. 37; R.v.Foy (1972) Crim. L.R. 604; R.v.Baba (1977) 2 N.S.W.L.R. 502.) These considerations were not the subject of submission until they were raised on the hearing of the appeal by members of the court. Application was then made to comprehend them by amenmdment of the grounds of the application for an order of review. The application was refused.

The learned judge by whom the application for an order of review was heard and refused expressed himself as "satisfied that, on the evidence before him, the Magistrate could not have properly committed the applicant for trial" if the testimony of the appellant had not been admitted as evidence against him. I am content to dispose of the appeal on the assumption that that was so.

The testimony of the appellant was given, as a witness called by senior counsel for the informant who had charged the conspiracy to import prohibited imports, after senior counsel acting for the appellant had questioned senior counsel for the informant as to the subjects on which it was proposed to elicit testimony by the appellant, who was a solicitor. Although the appellant was not present during that conversation, evidence was adduced, on the voir dire conducted before the magistrate who committed the appellant for trial, of what the appellant's counsel had said to the appellant before the appellant was called to give the evidence subsequently tendered against him, concerning that conversation between counsel. It was submitted on the appellant's behalf on the voir dire, and to the learned judge, and to this court, that the testimony given by the appellant had been induced by what his own counsel had said to him, which had been in turn induced by the conduct of senior counsel for the informant during the conversation between counsel, and that the conduct of senior counsel for the informant had constituted an "untrue representation made to" the appellant, so that the reception in evidence against the appellant of his testimony was prohibited by s.410 of the Crimes Act 1900 (N.S.W.). It was submitted also on behalf of the appellant on the voir dire and in the proceedings in this court that, if reception of the appellant's testimony were not prohibited, the conduct of senior counsel for the informant who had charged the conspiracy to import prohibited imports had been of such a character that discretionary power to reject the testimony as evidence against the appellant was available and should be exercised. According to those submissions, senior counsel for that informant had adduced the testimony, not bona fide in support of any of the charges of conspiracy to import prohibited imports, but in order to procure evidence of the appellant's commission of the offence with which the appellant was in fact later charged. It was further submitted that senior counsel for the informant had also misled the appellant into giving the testimony by failing to disclose to the appellant's senior counsel during their conversation all the testimony that he intended to adduce from the appellant. That failure in response to the appellant's counsel's enquiry as to the subjects on which the appellant would be questioned when he should give evidence was said to have constituted the "untrue representation", within the meaning of that expression in s.410 of the Crimes Act 1900 (C'wlth).

The learned judge by whom the application for an order of review was heard concluded that the appellant was not induced to give the testimony in consequence of anything that occurred during the conversation between counsel. But he also concluded that the failure by senior counsel for the informant to disclose to senior counsel for the appellant his intention to adduce evidence by the appellant which was not relevant to the charge of conspiracy to import prohibited imports constituted conduct which was "unfair" to the appellant. He also concluded that the adduction of the appellant's testimony had been undertaken "for the purpose not of obtaining evidence against the persons accused of the importation charge but in order to obtain evidence against the applicant in respect of a quite separate charge", and that that was a "quite improper abuse of the committal proceedings".

His Honour gave careful consideration to the question whether, if one or more grounds of the application for review were established, the discretionary power to quash the order for committal of the appellant for trial should be exercised. His Honour considered that question in the light of what was sought by way of relief, and of his own opinion as to what course he should follow in reviewing the magistrate's exercise of discretionary powers to exclude the evidence of the appellant's testimony. His Honour said:

"The applicant did not persevere with a submission that not only should the decision to commit the applicant be set aside but an order should also be made that the applicant be discharged as to the present information: see s.41 of the Justices Act. He asked instead that the matter should be remitted to the Magistrate, as I understood it to conduct a further voir dire and thereafter to proceed with the committal proceedings in accordance with s.41. I am firmly of opinion that this Court should not intrude in this matter between the committal proceedings and the trial in order to exercise for itself the discretions which exist in relation to the admission or exclusion of the evidence with respect to the applicant's statements."

After a review of many authorities which might afford guidance upon that question, His Honour determined that he should not exercise the discretionary power to quash the order for committal and direct the magistrate to resume the hearing of the committal proceeding. In that conclusion he was in my opinion clearly right. Against the interest of the appellant in the result of the committal proceeding and in the conduct of that proceeding according to law must be weighed the public interest in the expeditious resolution of accusations of crime. The longer such an accusation remains unresolved the greater the risk of serious harm to the community. Those risks are multifarious : the fading of witness's recollections, the diminution of public confidence in the administration of the criminal law, the prolonging of fears and hatreds which the resolution of criminal charges tends to allay, and uncertainty as to the course which the life of the accused is to take, and not infrequently uncertainty as to the courses of other lives, are perhaps the more obvious and the most common. Those considerations of public interest are of great weight and in my opinion constitute a principal justification of the conclusion which was stated by the Full Court of this court in Lamb v. Moss [1983] FCA 254; (1983) 49 A.L.R. 533 at 564: "The power to make an order of review under the Act in respect of committal proceedings should be exercised only in most exceptional circumstances, especially in respect of a decision in the course of proceedings". This is not a decision "in the course of proceedings", although it is assumed to have turned on such a decision. And, it might be said, the delay in the resolution of this charge has been already so great that concern about further delay need hardly be felt. But this court should in my opinion do what it can, consistently with authority and with justice to the parties, to minimise delay, even in a case such as this.

It was submitted on the appellant's behalf that it was in the public interest that what the learned judge had characterised as impropriety in the conduct of senior counsel for the informant in the proceedings for conspiracy to import prohibited imports should be discountenanced by the exercise of this court's power to quash the order for committal, lest encouragement be given to others to engage in similar conduct.

If the disapprobative findings and opinions of the learned judge were assumed to find a sound basis in the evidence on which they rest, the submission might be accorded some weight. Even on that assumption, I would not regard this as a case for the exercise of the power to quash the order for committal. But the evidence did not, in my opinion, afford such a basis. It consisted of a transcript of the oral evidence of senior counsel for the appellant concerning the conversation with senior counsel for the informant, which took place more than three years before the evidence was given, and certain documents which were said to record notes made by senior counsel for the informant at about the time the conversation took place. Much of the oral evidence was adduced in inadmissible, tendentious form and the witness, who was in no way responsible for that marring of his testimony, frankly confessed imperfection of recollection of the conversation. The notes were apparently intended to be used by their maker as an aide-memoire : they appear to constitute an incomplete record of the maker's thoughts and conversations relevant to the issues canvassed on the voir dire. If impropriety in the conduct of criminal prosecution is to be discouraged by curial order and animadversion, that purpose will be achived only if order and animadversion wait upon clear demonstration of the occurrence of the conduct and, in a case such as this, careful explanation of the reasons why the conduct was improper. The material before this court does not in my opinion justify confidence in a conclusion that the conduct of counsel for the informant was improper.

The circumstances which the evidence in this court discloses give no ground for any confidence that the exercise of this court's powers under the Administrative Decisions (Judicial Review) Act 1977 to quash the order for committal would facilitate the due processes of the criminal law. There is reason to think that a more precise formulation of the charge may be required : that can be more effectively done at trial than before a magistrate. Senior counsel for the informant was not called to give evidence on the voir dire. (Only the two counsel who held the conversation concerning the evidence to be adduced from the appellant were present at the conversation, it would seem.) It is in my opinion in the interests of justice that the next occasion when an enquiry by voir dire into the admissibility of the appellant's testimony is held should be, and should be known by the parties to be, the last such an occasion. That would be at trial. Further, the circumstances relied upon by the appellant as requiring the exclusion of his testimony from evidence are quite unusual and more appropriately to be considered by a judge than by a magistrate, in my opinion. The expression, by the learned judge of this court from whose order this appeal is brought, of his findings and opinions concerning the conduct of senior counsel for the informant, and of his opinion that there "would seem to be a substantial foundation for a conclusion that it would be unfair to" the appellant "to admit his answer into evidence", might be a distraction to a magistrate. They were findings and opinions which it was unnecessary, if I have correctly understood his Honour's reasons for judgment, that he express; and the findings were derived from evidentiary material so unsatisfactory for the purpose that it may confidently be expected that, if a judge of the District Court of New South Wales is called upon to determine the admissibility of the appellant's testimony, he will so control the conduct of the voir dire as to ensure that his ruling will rest on a safer evidentiary ground.

In my opinion the foregoing considerations require the conclusion that the learned judge was correct in exercising his discretionary power to refuse an order of review. For those reasons I concurred in the order dismissing this appeal.

Some of the counsel who appeared on the hearing of the appeal had appeared in some of the proceedings to which I have referred. None of them played in any of those proceedings a part to which any critical observation in these reasons is intended to refer.

This is an appeal from an order of a single judge of the Court dismissing an application for judicial review under the Administrative Decisions (Judicial Review) Act, 1974 ("the Act") (see [1984] FCA 122; (1984) 53 A.L.R. 513). Review was sought of a decision of a magistrate committing the appellant for trial on a charge under s.42 of the Crimes Act, 1914.

In summary form, the background facts to the application are that the appellant, formerly a solicitor, gave evidence, without relevant objection, at the committal proceedings of certain other parties. The learned judge found that questions were asked of the appellant with a view to obtaining evidence against him in respect of a conspiracy by him to obstruct the course of justice in connection with the grant of bail to a client of his. Some years later, the appellant was charged under s.42 of the Crimes Act. At the appellant's committal hearing, objection was taken to the tender of his evidence in the earlier committal proceedings on the grounds first, that his statements were induced by a promise or misrepresentation; and secondly, that, in the circumstances, it would be unfair to use the evidence against him. The learned magistrate decided to admit the statements into evidence and, as has been said, committed the appellant for trial.

In the hearing of the application for review, the appellant ultimately sought orders declaring that the evidence was inadmissible and remitting the matter to the learned magistrate for the purpose of conducting a further voir dire and of thereafter proceeding with the committal in accordance with s.41 of the Justices Act, 1902 (N.S.W.). The learned judge held that, although the answers sought to be used against the appellant were in the relevant sense voluntary, it would be unfair to admit the material into evidence against him (see Cleland v. R [1982] HCA 67; (1982) 43 A.L.R. 619). However, his Honour, as a matter of discretion, felt that it would be wrong for this Court to intrude into the committal proceedings. In short, the learned judge held that none of the exceptional circumstances contemplated in Lamb v. Moss [1983] FCA 254; (1983) 49 A.L.R. 533 at p.546 had been demonstrated to exist.

Upon the opening of the appeal, we invited counsel for the appellant to address first on the question of discretion. The respondents were not called on although a notice of contention had been filed seeking to challenge certain of the findings made by the learned judge as to the conduct of senior counsel then conducting the prosecution to support his conclusion that the admission of the statements made by the appellant would be unfair to him. It should be noted that senior counsel now appearing for the respondents sought to canvas findings made by the learned judge insofar as they reflected adversely upon the senior counsel who conducted the prosecution but the Court had already indicated that it proposed to dismiss the appeal on the ground that the learned judge was correct in declining, for discretionary reasons, to interfere. No occasion therefore arose for us to consider the matters thus sought to be canvassed.

The learned judge, in the course of his full and careful judgment, discussed and analysed the authorities dealing with the discretion of the Court to decline to interfere in a committal. I respectfully agree with that analysis and its application to the facts of this case. It is true that the Court may well decide to intervene where the very jurisdiction of the magistrate to proceed to committal can be questioned. A clear illustration is where the information discloses no offence known to the law (see Sankey v. Whitlam [1978] HCA 43; (1978) 142 C.L.R. 1). That raises a bare question of law which may be appropriately dealt with by another court on judical review. But questions relating to the admissibility of evidence raise special problems which are best left to the tribunal receiving the evidence (see Ward v. Williams [1955] HCA 4; (1955) 92 C.L.R. 496 at p.514; Clyne v. Scott (1983) 52 A.L.R. 405 at pp.413-4).

This is especially so when, as here, the question of admissibility of the evidence is very much concerned with notions of fairness and the exercise of a judicial discretion in that context. As a matter of policy, there is every reason to suppose that such questions should be left to the discretion of the judicial officer who is seized of the whole case rather than to invite the fragmentation which would flow from handing over the discretion to this Court, given its limited perspective of the proceedings (see Choo Cheng Kui v. Quinn, unreported, Full Federal Court, 25 September 1984; Edwards v. Von Einem, unreported, Full Federal Court, 12 October 1984).

I would dismiss the appeal with costs.