be ipee pne . X vf a C1 Ce ak SONS Fes Es Or VS vv OO OP OO nS . bday ae rrr ny ee aee | Fe OO UTC PT ORDNICS TT ON CK COST PEE 8 07 MONE RE Lee CAPCHAORDS BDMINISTRATIVE LAN ~ application for judicial review of decision of Magistrate made in course of committal proceedings - applicant charged with conspiracy - decision of Magistrate to follow terms of s. 41 of Judiciary Act and either discharge or find prima facie case against applicant before completion of prosecution evidence against all alleaged co-conspirators = whether decision susceptible of being reviewed - principles involved in review of such decisions. Administrative Decisions (Judicial Review) Act, 1977 SAMUEL FERMIA v. DERRICK HAND ESO. & WILLIAM RAYMOND DONALDSON G. 119 of 1984 Lockhart J. 19 April 1984 Sydney ene ee A ee nine ne A LER TE RN = em av t - - - 8 whe? : pL ae tk St Sate ct ect le MAAN ee a em hack AR arate dd terete mer a | . os tH IN THe FEDERAL COURT OF AUSTRALTA I NEW SOUTH WALES DISETRICT REGTSTRE BETWEEN : SAMUEL FERMIA * Applicant AND: DERRICK HAND ESQ. First Respondent WILLIAM RAYMOND DONALDSON Second Respondent LOCKHART J. 19 April 1984 Sydney ORDER THE COURT ORDERS THAT: l- The application be dismissed. 2. The apolicant pay the costs of the first respondent as a submitting respondent and the resvenaent. costs of the second Die tee hint nee eet eet vate eatin oe Le mammal te a Ka ' 4, oan tid wo cae elite ent ee ee IN THE rEDERAL COURT OF AUSTRALTA ~wr NEW SOUTU WALES DISTRICT REGTSERY —~ GENERAL DIVISTON BETWEEN : SAMUEL, FERMIA Applicant AND: DERRICK HAND ESO. First Respondent WILLIAM RAYMOND DONALDSON™ Second Respondent CORAM : LOCKHART J. 19 April 1984 REASONS FOR JUDGMENT LOCKHART J. This is an application under the Administrative Decisions (Judicial Review) Act 1977 (the "Judicial Review Act") for an order of review of a decision of the first respondent, a stipendary magistrate, in the course or lengthy committal proceedings against the applicant Samuel Fermia and others, relating to charges for conspiracy to import heroin into Australia from Hong Kong. The evidence gives only the broadest account of the committal vroceedings, the charges against the applicant and the other persons the subject of those proceedings. This is not surprising because the committal proceedings were commenced in November 19983 and have continued since then, although somewhat intermittently, and still are continuing. They nr rer en The committal proceedings are aporoaching their conclusion. On Friday, 6 April 1984, senior counsel for the prosecutor informed the leacned Magistrate that he intended to close his case against the applicant on the following Monday, 93 April, after he tendered certain material. It was in fact on Tuesday, 10 Avril, that senior counsel tendered that material and announced the closing of the prosecution's case against the applicant on all charges. The Magistrate stated. in effect that he proposed to follow the course chartered by 4. 41 oF Che Juspices Act, 1992 namely, either to order that the applicant he discharged or, if - he was of the opinion that a prima facie case had been made out, to permit the applicant to call evidence and then determine whether he ought to be committed for trial. The prosecutor has since called other evidence in the committal proceedings against other defendants; but it 1s common ground that nothing has transpired in the committal praceedings which jeopardises whetever rights the applicant may have in the proceedings before this Court. It is not disputed before me that this Caurt has jurisdiction to determine the matter before it and that the decision of the Magistrate under challenge is of a kaind susceptible of review under the Judicial Revisyw Act: see Lamb v. ee ewan we ee ee Van} | } | i | { ; j Bmolete dat mat emt Le acl 2 te ke . paren a 3. Moss (1983) 49 ALR 533. ou ct v. Moss also makes Slain that this Court has a discretion to refuse relief notwithstanding that the statutory pre-conditions to the grant of relief have been satisfied. It is also clear from that judgment that the power to make an order of review under the Judicial Review Act in resnect of committal proceedings should be exercised only in exceptional circumstances, especially in respect of a decision like the present one, made in the course of committal proceedings: see Lamb v. Moss at sage 546. Once this application for review was brought under the Judicial Revissy Act, the Magistrate, very properly, decided ta take no step in the committal proceedings adverse ta the interests of the applicant pending the determination of the proceedings before this Court, which were commenced as recently as last Friday. The hearing concluded yesterday; but it is nota case where the court can adjourn the application for judicial review until committal proceedings have concluded because any rignt which the applicant may have under the Judicial Review Act will by then, at least for all 'practical purposes, have been rendered nugatory.- Hence his application must be determined now. The evidence has not fully encompassed all matters relative ta the issues in this case and much of the material before me consisted of statements from the bar table, from which (and IT do not say chis critically) it was not always sasy to distinguish between statements of fact and argument. These and A I Re A COOTER SS Fre te mm a ey ie other difficuities arise in the determination of cases such as this because they are the consequence of the fact that decisions made in committal proceedings are susceptible of orders of review under the Judicial Review Act during the pendency of the committal oroceedings. I add my voice in support of the view that it is only in exceptional circumstances that a superior court will consider unterfering with committal proceedings, especially in relation ta decisions made before the proceedings have concluded. On the other hand of course, if an applicant has a right which is in fact in jecpardy during the course of committal proceedings , then the Court must not be slow to interfere sa as to protect that right in an appropriate case. The charges against the applicant are: L. that between about 26 June 1982 and ahout 39 September 1983 he conspired with five named persons and divers other persons to import heroin contcary fo paragraph 233B(1)(ch) of the Customs Act 1901; 2. that on or about ¢ August 1983, being a Commonwealth officer, he received property, namely a sum of money, for himself on the understanding that the exercise by him of his authority asa Comionwealth officer would be influenced contrary amet 5. to sub-s. 7342) af the Crimes Act, 1914 (Cth); 3. that between 1 March 1983 and 14 August 1983 he wilfully interfered with a telecommunications installation belonging to the Australian Telecommunications Commission contrary to the provisions of 3s. 90 of the Telecommunications Act 1975 (Cth); and a, that between about 1 January 1983 ° and about $§ September 1983 he conspired with two named people and, divers other vsersons to import heroin cantrary to para.Z33B(1)(cb) of the Customs Act. The role which the. applicant 1s said to have played in the matters the subject of the charges is that, as an officer of the Australian Telecommunications Commission, he agreed to ensure that telepnone interception devices were either not installed or, 1£ installed, were removed and that he acted in conformity with . that agreement. The applicant asserts that the decision of the Magistrate that he proposed to implement the provisions of s. 41 of the Justices Act in its application to the case against the applicant, should be reviewed on the ground that it constituted a denial of natural justice to the apolicant in that: Re ee etre Cor ree riemeamammpeereemente semen ew ne ee ental a Eales dye ae teatk ee matted ale De ee ene oe, —_—— - -- - ee - - ee es hereb th tj (a) the applicant will he t precluded from participatin in the Ddalance of the committal proceedings against the other defendants and in particular from cross-examining the witnesses whom the prosecutor will call in relation toa the conspiracy to which the applicant is alleged to have been a party; " {b) the applicant will be foreed to elect whether to call evidence before the prosecutor has called the remaining evidence against the other alleged conspirators; and (c) the applicant will be required to address the Magistrate on the question whether a prima facie case has been made out against him before the whale of the evidence against the other alleged conspirators has been called. The applicant also asserts that the Magistrate's decision under challenge in this case is wrong in law hecause he is in effect permitting the prosecutor to close his case against the applicant before all the evidence for the prosecution against the other alleged conspirators has been called. Other submissions were advanced on behalf of the applicant but they are, in effect, refinements of the points which I have summarised above. It is well established that the function of a committal MARTINO ee ty Reg en ED aeeeterertinemnnncneretert - "ty See LDS 2 SE nS On OY EDT ane aT nnn NOY Danes VeetIre ENERnET, CUSenene | weer tava et atte tatiana eine tee OS mle ala cated ened ene din deh det tn a eee Same "to ensure that no one shall stand nis trial unless a prima facie case has been made out. The prosecution have the duty of making out a prima facie case, and if they wish for reasons such as the present nat to call one particular witness, even though a very important witness, at the committal proceedings, that in ny judgment is a matter within their discretion, and their failure to do so cannot on any basis be said tao hea breach of the rules of natural justice." R. v. Eoving and Harlow Justices. Ex parte Massaro £19731 1 Q-B. 433 per Lord Widgery C.d. at p. 435. In Moss ¥. Browm (19791 1 N.S.W.L.R. 114 at pp.-125-126 the Court of Appeal of New South Wales said in relation ta those sections of the Justices Act involved in this case, in particular s. 41: "The first objection is that it misconce1ves the nature and purpose of 2a magisterial inquiry which, as already indicated, is to receive, examine and permit the testing of, evidence introduced by the prosecutor before the inquiring magistrate in order to determine whether there is sufficient evidence to warrant the verson charged being put on trial and, if not, to discharge that person. That this is so is clear from s. 41. It is true that in practice the occasion, or the evidence given, is often used for other purposes. Thus the inquiry is often availed of to havea kind of a dress-rehearsal for the trial, so that risky questions are asked at the inauirv, to. the intent that unfavourable answers given during the cross-examination of a—Crown witness will be filtered from the evidence put before the jury. The inquiry is often used for other tactical purposes uncomnected with persuading the magistrate to commit for trial. It is also true that, as Jordan C.J. pointed out in Cousens case, the depositions may provide the Attorney-General with "useful material" to enable him to decide whether he , will file an indictment, whatever the wmagistrate's decision might have been. However, 1t is no part of the Seer 0 eee oi roe 7 er Dome een rene eeer emer 8. function of the inauiry, or the duty of the commicting magistrate, to ensure these uses are served, s0 that it is not open to argue that the inculry, or its conduct, 1S unjust, because these uses are not served, or not served in a way most benericial to the person charged This view 15S supported by the decision in R. v. Epping and Harlow Justices and Re van Beelen. If material, whether in the form af a deposition, a statement ona document, is-not part of the evidence at an inquiry into a charge against a particular person, but is subsequently used in a way which is unfair to that person, then this is not properly a matter of complaint concerning the conduct of the inauiry, but concerns the conduct of the person wha later acts unfairly. There are well accepted practices, basad on principles of fairness, as to giving of proper notice to an accused person that material not produced at the inquiry is intended to be used at the trial. However, the mere circumstance that such material has not been produced at the inquiry and, therefore, the accused has not had an opportunity to ore~test it by cross-examination, does not render its use unfair. In any event, any question ot fairness is a matter for the judge who presides at the trial. Such questions have no relation ta the conduct of the magisterial inquiry, and hence cannot arise ima proceeding such as the present, taken in reference to such an inauir;. Pinally, any unfairness apprehended in the present case is hypothecical and intervention premature. In any event, the remedy sought is inappropriate. In any discussion of fairness, it is imperative to consider the position of all parties. [It is sometimes forgotten that the Crown has rights and, as 2t has a heavy responsibility in respect of the invoking and. enforcement o> the criminal law, which includes seeing that the public revenue is not imposed upon, 1t is entitled to maintain those rights, even if they may bear heavily upon some accused. As Lord Goddard C.J. said in R- Vv. Grondkowski: 'The judge must consider the interests of justice as well as the interests of the prisoners' ." Notwithstanding that two or more persons are charged with conspiracy, the magistrate hearing the committal proceedings must consider and treav the case of each defendant separately from the case of each other derendant and must carefully distinguish between evidence led by tha prosecution against one a SER NAV wie Sn Rey ncaerie, ceaee yt ' Vere Tey a 8a ' en te ett mee enamel Bie ae , Bet ' . tre OEE OD Ont en el CEE O] Sent OE EOL SY Pee Sen ne Deny cat tae tee a LR cnt bE tne [orn SeeuTwane ere ee Cam a 9. Gefendant and admitted only againsc him from evidence admitted against other defendants: Smith v. R.- (1970) 120 C.L.R. 572: R. v. Darby (1982) 148 C.L-R. 688; and Kannsangara v. R. £19517 AC 1 at p. 6. These considerations support the conclusion that the prosecution was entitled to close its case against the applicant when it chose to do so. The applicant may then call any evidence he wishes before the Magistrate determines whether he should be committed for trial. The fact that the committal proceedings will continue against the other alleqed conspirators does not in my view entitle the applicant to assert a right to play any further role im the proceedings which continue against the remaining defendants. There are well-established practices which will prevent any unfairness to the applicant if he be committed for trial and the Crown seek to adduce evidence at his trial not led during the committal proceedings before the applicant was committed for trial, but led thereafter against the remaining defendants. The application should he dismissed with costs. The orders of the court are: L, That the application be dismissed. 2. That the applicanc pay the costs of the first respondent en dite tere ee tbh verenand ow: ce we oe bmn ee nde ae CD art Ne a tt nada atette dT des Bates ete Fr au Dl rane pth lem aah nnnae dD iene -- woe ee ee ee ee ~ a nae a ——: i es a — ma ope-og ora ree preceaing 7a503 O72 5 "8 CSE, Reasons fcr ---7 Mr. Jusbce Lie. Dated: [F PPRIL- /9EF " Ck agile tats irae me aed Te ates ee alte temas as St pia me a ee TY