Re Director of Public Prosecutions v Pamela Mary Eaton Tacey and William John Smith (Stipendiary Magistrate) [1993] FCA 159 (15 April 1993)

FEDERAL COURT OF AUSTRALIA

Re: DIRECTOR OF PUBLIC PROSECUTIONS
And: PAMELA MARY EATON TACEY and WILLIAM JOHN SMITH (Stipendiary Magistrate)
No. QG31 of 1993
FED No. 220
Number of pages - 12
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J(1)

CATCHWORDS

Administrative Law - notice of objection to competency upheld - decision of stipendiary magistrate to adjourn committal proceedings - charges of fraud against the Commonwealth - prosecution not intending to call a witness for the prosecution at the committal proceedings - witness unable to attend due to illness - limited medical information as to nature and likely duration of illness - discretion whether any good reason not to call a material witness at committal proceedings resides in prosecuting counsel - decision to adjourn did not amount to a permanent stay of prosecution of the committal proceedings - decision to adjourn of a procedural nature only - not 'a decision' for the purposes of the Administrative Decisions (Judicial Review) Act 1977.

Administrative Decisions (Judicial Review) Act 1977 ss. 3, 6 Crimes Act 1914

Justices Act 1886 (Qld) s. 84

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

Barton v. The Queen [1980] HCA 48; (1980) 147 CLR 75

Lamb v. Moss [1983] FCA 254; (1983) 76 FLR 296

In Matter of District Court (WA) Act 1969 (1990) 2 WAR 297

Houston v. Crannage (1989) 42 A Crim R 446

Sloan (1988) 32 A Crim R 366

HEARING

BRISBANE, 15 April 1993
15:4:1993

Counsel for the applicant: Mr R. V. Hanson QC
instructed by: Commonwealth Director

of Public Prosecutions

Counsel for the first respondent: Mr J. Griffin QC

instructed by: John M. O'Connor and Co.

Counsel for the second respondent

(who appeared to abide the order
of the Court): Miss K. Lynch
instructed by: Crown Solicitor

ORDER

The Court orders that:

The application is dismissed with costs, including reserved costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

SPENDER J This is a notice of objection to competency in respect of an application to review a decision by a stipendiary magistrate, Mr William John Smith, made on 25 January 1993 that committal proceedings against Pamela Mary Eaton Tacey, which were to commence on 27 January 1993, be adjourned for mention only on 23 April 1993. Those committal proceedings related to six charges against Mrs Tacey alleging contraventions of s. 29D of the Crimes Act 1914 (Cth). Those charges allege fraud against Mrs Tacey.

2. In the application it is said that the Director of Public Prosecutions is aggrieved by the decision because the committal proceeding is being delayed for no valid reason, it is in the public interest that the committal hearing proceed promptly, and due to the uncertain state of health of a witness, one Kevin Carroll, no useful purpose is to be served by adjourning the proceedings.

3. On 25 January this year, Mr Griffin QC, counsel for Mrs Tacey, sought that the committal proceedings against his client be adjourned on the basis that the prosecution did not intend to call Mr Carroll as a witness for the prosecution at the committal. Mr Griffin's submissions, which were summarised in writing, made reference to the importance of committal proceedings and reliance was placed on the decision of the High Court in Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 and the observations of Kneipp J in Sloan (1988) 32 A Crim R 366.

4. It was submitted that denial of the right of the defendant to cross-examine Mr Carroll was tantamount to a denial of the right to a committal. Mr Carroll was said to be a material witness. It is clear that he had some part to play in the initiation of the prosecution, but the claim was made that it was essential that counsel for Mrs Tacey have the right to cross-examine him at the committal.

5. The difficulty about Mr Carroll as a witness was occasioned by the fact that a Dr Pearson had in a short letter dated 17 December 1992 communicated with the Australian Federal Police in the following terms:

"As you know Mr Carroll has been receiving Psychiatric
treatment since October of this year. His condition is
exacerbated by stress and his recovery is being
complicated by the enduring stresses in his life currently.
I firmly advise that his further involvement in the
current prosecution is contra-indicated on medical grounds.
I apologise for any inconvenience this may cause. "

6. Dr Pearson is a staff psychiatrist in the Division of Psychiatry at the Royal Brisbane Hospital. The letter is an 'ex cathedra' pronouncement devoid of any meaningful information as to the nature and extent of the risk of harm to the health of Mr Carroll if he were to give evidence at the committal proceedings and gives no information at all as to whether the contra-indication is for a limited time or indefinitely.

7. One has to recognise the limited probative value communications of that generality have. I simply note how unhelpful it is for anybody who has to assess whether in fact a witness in a realistic way is available to a prosecution.

8. I am not here concerned with the merits of the application for an order to review, and as a consequence, with considerations expressed in Barton v. The Queen (supra) and Sloan (supra) and in cases such as Houston v Crannage (1989) 42 A Crim R 446, and on appeal in In Matter of District Court (WA) Act 1969 (1990) 2 WAR 297, and other cases, which touch on the requirement of a prosecuting counsel at committal proceedings.

9. It has to be understood, of course, that the obligation on a prosecuting counsel at committal proceedings is to call all material witnesses unless there are good reasons for not calling them, but the discretion as to whether there are good reasons or not resides in the prosecutor, who has to exercise his or her discretion sensibly and reasonably. If there are sound reasons why a witness cannot be called at a committal proceeding, then there is no obligation on a prosecuting counsel to call that witness, and it is not for a magistrate or anybody else to assume the responsibility that prosecuting counsel has.

10. The health of a witness is but one of many competing interests that have to be balanced in the judicial process. There is clearly a public interest in bringing offenders to justice, as there is also a public interest in the timely exoneration of those who are not guilty of offences. The interests of justice are not coincidental with the interests of a defendant. It would be an intolerable state of affairs if a person could postpone the judicial process indefinitely because a witness was truly unavailable to give evidence.

11. The question in this case, however, is whether what Mr Smith purported to do amounted to a permanent stay of the prosecution of the committal proceedings or was in truth an exercise of the power conferred by s. 84 of the Justices Act 1886 (Qld). That section provides:

"In any case of a charge of an indictable offence, if from
the absence of witnesses or from any other reasonable
cause it becomes necessary or advisable to defer the
hearing of the case, the justices before whom the
defendant appears or is brought may adjourn such hearing
to the same or some other place, and may by their warrant
from time to time remand the defendant to some gaol,
lock-up, or other place of security, for such period as
they may in their discretion deem reasonable, but not
exceeding eight clear days (or such longer period as may
be consented to by the defendant) at any one time, to be
there kept, and to be brought before the same or such
other justices as shall be acting at the time or place
appointed for continuing the hearing."

12. That power is a power "under an enactment" to adjourn a hearing if, inter alia, there is an absence of witnesses or from any other reasonable cause it becomes necessary or advisable to defer the hearing of the case.

13. In the circumstances that Mr Smith adjourned the matter until 23 April 1993 for mention only, it seems to me that I cannot conclude that what in fact he has done is to order a permanent stay of the committal proceedings or at least a stay of the committal proceedings until and unless the prosecution give an undertaking that Mr Carroll would not be called at the trial of Mrs Tacey should she be committed for trial on any offence.

14. In that regard reference may usefully be made to the observations of the Full Court of the Federal Court in Lamb v. Moss [1983] FCA 254; (1983) 76 FLR 296 at 302, where the Court considered an assertion that an abuse of process would occur were a stipendiary magistrate to commit Dr Moss for trial unless certain undertakings were given concerning evidence which would be called for the prosecution at the trial. The Court said:

"We are not concerned whether a magistrate hearing
committal proceedings may decline to continue with those
proceedings on the ground that they are an abuse of
process. What is here alleged to involve abuse is
related not to the conduct of the committal proceedings
but at most involves the power of the trial court to
ensure fairness if necessary by a stay or dismissal at
the trial: cf Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75.
In any event, the committal proceedings have not yet
progressed to the point at which the magistrate is
required to decide whether Dr Moss is to be committed for
trial. The stay application, on the basis on which it
was made, was plainly premature at the stage at which the
committal proceedings had arrived when the application
for review was made to this Court."

15. It seems to me, therefore, that I am dealing with a situation where a magistrate has adjourned committal proceedings in the light of the information concerning the health of Mr Carroll until 23 April 1993 for mention. I anticipate that the magistrate would then be in a position to be informed with some particularity as to the future position of Mr Carroll, and in those circumstances it seems to me that it is for the prosecutor to determine whether there are good reasons for proceeding with the committal proceeding without Mr Carroll as a witness or whether a further adjournment is in order so as to permit his attendance as a witness.

16. The notice of objection to competency asserts that the decision by Mr Smith is not a decision within the meaning of the term "decision to which this Act applies" as defined in s. 3 of the Administrative Decisions (Judicial Review) Act 1977 ('the ADJR Act'). It was submitted that the decision was in truth a decision to adjourn committal proceedings, and as such, is not a "decision" within the meaning of that section. If, as I believe to be the case, it was a decision made under s. 84 of the Justices Act to adjourn for a short time and not stay the matter indefinitely, the decision is of a procedural nature only and is not encompassed by decisions reviewable pursuant to the ADJR Act. I accept that that is the case.

17. In the Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Mason CJ said at 337:

"To interpret 'decision' in a way that would involve a
departure from the quality of finality would lead to a
fragmentation of the processes of administrative
decision-making and set at risk the efficiency of the
administrative process.
The policy arguments do not, in my opinion, call for an
answer different from that dictated by the textual and
contextual considerations. That answer is that a
reviewable 'decision' is one for which provision is made
by or under a statute. That will generally, but not
always, entail a decision which is final or operative and
determinative, at least in a practical sense, of the
issue of fact falling for consideration. A conclusion
reached as a step along the way in a course of reasoning
leading to an ultimate decision would not ordinarily
amount to a reviewable decision, unless the statute
provided for the making of a finding or ruling on that
point so that the decision, though an intermediate
decision, might accurately be described as a decision
under an enactment.
Another essential quality of a reviewable decision is
that it be a substantive determination."

And then later he said:

"If 'decision' were to embrace procedural determinations,
then there would be little scope for review of 'conduct',
a concept which appears to be essentially procedural in
character. To take an example, the refusal by a
decision-maker of an application for an adjournment in
the course of an administrative hearing would not
constitute a reviewable decision, being a procedural
matter not resolving a substantive issue and lacking the
quality of finality. Then it is the 'conduct' of the
hearing in refusing an adjournment that is the subject of
review. To treat the refusal of the adjournment in this
way is more consistent with the concept of 'conduct' than
with the notion of 'decision under an enactment'."

At 338, his Honour said:

"Lest it should be thought otherwise, I should say that,
to the extent in Lamb v. Moss that the magistrate decided
that a prima facie case had been established and that he
would proceed with the committal proceedings, a
reviewable decision had been made. That decision was one
for which s. 41(2) of the Justices Act 1902 (NSW)
specifically provided."

And later he said:

"I agree with the Full Court in Lamb v Moss (1983) 76
FLR, at p 312; 49 ALR, at p 550) in thinking that
the court has a discretion whether to grant or refuse
relief by way of judicial review under the AD(JR)
Act. The references in s. 16 of the AD (JR) Act to
'in its discretion' are eloquent on that score. 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
(1983) 76 FLR, at p 326; 49 ALR, at p 564. 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 [1989] HCA 68; (1989) 168 CLR 338."

18. The applicant for review, in response to the notice of objection to competency, submitted that the decision was one which the statute required or authorised relying on the provisions of s. 84 of the Justices Act.

19. It was submitted that, viewed practically, the decision was final or operative and determinative because, although expressed as an adjournment, it was a decision in reality to refuse to allow the committal proceeding to proceed. In practical terms, it was submitted, it was a stay of proceedings.

20. I do not apprehend that that was in truth the characterisation of the order made by the magistrate. If I am wrong in that matter, it may be that the decision does have an air of finality or determination about it, but there is in that event a further difficulty. Kneipp J in Sloan's case (supra), at 369 said:

"It is clear from the judgments in Barton that if there is
an abuse of process a stay may be granted in the Supreme
Court or a District Court. I have not investigated the
power of a Magistrates' Court in this regard, but if the
power is conceded to the District Court, which is a court
of limited jurisdiction, then I could see no logical
reason why the power should not be conceded to a
Magistrates' Court, which is also a court of limited
jurisdiction."

And later he said:

"One power which the Magistrates' Court does have is a
power to adjourn proceedings if it thinks fit, and it
seems to me that if a Magistrate considered that the
process in his court was being abused, he could exercise
this power until he was satisfied that the abuse would
not be proceeded with."

21. The difficulty that I apprehend, if the magistrate had or in the future purported to stay the proceedings, is that that power may be not an exercise of the power conferred by s. 84 of the Justices Act, but the exercise of a power inherent in the court to control its own proceedings, and for that reason would not be a decision made "under an enactment." However, it is unnecessary to pursue that difficulty further.

22. It seems to me, however, that an order which is in a practical sense a stay goes beyond a matter of procedure.

23. Finally, the applicant on the application for review gave notice that in the event that the objection to competency is upheld leave will be sought to amend the application to seek a review of the conduct of Mr Smith in adjourning the committal proceedings on the basis of s. 6(1)(f) of the ADJR Act, in that an error of law has been committed in the course of the conduct, particulars being those set out in ground 1 of the application for an order of review.

24. Those grounds include that the magistrate erred in law in holding that Mrs Tacey was entitled to know what the Crown witnesses who are to be called to give evidence at trial say on oath and was entitled to have an opportunity to cross-examine each of those witnesses; and in applying the wrong test in considering that the trial of Mrs Tacey would be prejudiced and grossly unfair, if Mr Carroll was not called at the preliminary examination, rather than considering whether or not the committal hearing would be unfair in the event that Mr Carroll was not called; and in requiring the Director to provide an undertaking to the court that Mr Carroll would not be called by the applicant at Mrs Tacey's trial in order for the committal proceedings to proceed on 27 January 1993.

25. I would not grant leave to amend the application in the way foreshadowed because, in the opinion I take of the matter, at the moment it would be futile. The amendment is sought to base a review on the conduct which consisted in adjourning the matter until 23 April 1993 for mention only as conduct for the purpose of making a decision whether there should be a committal for trial or not. It had to be characterised in that way because if it were simply the conduct associated with and leading up to the decision to adjourn, a non-reviewable decision for the reasons which I have given, it would seem to be simply permitting to do indirectly that which is prohibited to do directly.

26. In that sense, the statement by Mason CJ in Australian Broadcasting Tribunal v. Bond (supra) concerning the conduct of the hearing and refusing an adjournment in contrast to the making of a decision to refuse an adjournment may be referred to with profit. His Honour at 341 of his judgment said:

"The distinction between reviewable decisions and conduct
engaged in for the purpose of making such a decision is
somewhat elusive. However, once it is accepted that
'decision' connotes a determination for which provision
is made by or under a statute, one that generally is
substantive, final and operative, the place of 'conduct'
in the statutory scheme of things becomes reasonably
clear. In its setting in s. 6 the word 'conduct' points
to action taken, rather than a decision made, for the
purpose of making a reviewable decision. In other words,
the concept of conduct looks to the way in which the
proceedings have been conducted, the conduct of the
proceedings, rather than decisions made along the way
with a view to the making of a final determination.
Thus, conduct is essentially procedural and not
substantive in character. Accordingly, s. 3(5) refers to
two examples of conduct which are clearly of that class,
namely, 'the taking of evidence or the holding of an
inquiry or investigation'. It would be strange indeed if
'conduct' were to extend generally to unreviewable
decisions which are in themselves no more than steps in
the deliberative or reasoning process.
Accordingly, there is a clear distinction between a
'decision' and 'conduct' engaged in for the purpose of
making a decision. A challenge to conduct is an attack
upon the proceedings engaged in before the making of the
decision. It is not a challenge to decisions made as
part of the decision-making process except in the sense
that if the decisions are procedural in character they
will precede the conduct which is under challenge. In
relation to conduct, the complaint is that the process of
decision-making was flawed; in relation to a decision,
the complaint is that the actual decision was erroneous.
To give an example, the continuation of proceedings in
such a way as to involve a denial of natural justice
would amount to 'conduct'. That is not to deny that the
final determination of the proceedings would constitute a
decision reviewable for denial of natural justice."

27. Here there is no aspect of the conduct preceding the making of the decision to adjourn which is said to constitute a breach of procedural fairness, and it seems to me that what is sought to be argued on the foreshadowed amended ground is exactly comprehended by review of the decision to adjourn.

28. Essentially, the applicant's position for review is based on a characterisation of the decision by the magistrate as, for all practical purposes, a stay of committal proceedings. I am not persuaded that that is the position.

29. If a magistrate purported to grant a stay of the proceedings for the reasons expressed by the second respondent, then different considerations would undoubtedly have to be called into play.

30. For the above reasons I uphold the objection to competency. The application is dismissed with costs, including reserved costs.