372 CATCHWORDS ms, ADMINISTRATIVE LAW - Judicial Review - Criminal charges - Committal proceedings - Application for review of decision to commit for trial - Application requiring detailed consideration of evidence - Whether court should, in the exercise of its discretion, entertain Application - Effect of non-compliance with s.7 of Telecommunications (Interception) Act 1979. id dministrative Decisions (Judicial Review) Act 1977 3.5 tae elecommunications (Interception) Act 1979 s.7 ANTHONY EUSTACE v BRIAN CLOTHIER & ORS G.1B84 OF 1984 WILCOX J 31 OCTOBER 1984 SYDNEY IN_THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION No. G.184 of 1984 wee rw BETWEEN : ANTHONY EUSTACE Applicant AND: BRIAN CLOTHIER & ORS Respondents ORDERS CORAM: WILCOX J DATE: 31 OCTOBER 1984 PLACE: SYDNEY 1. Application dismissed. 2. Order that the applicant pav to the respondents their costs of the proceedinas. IN_THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G.184 of 1984 GENERAL DIVISION BETWEEN : ANTHONY EUSTACE Applicant AND: BRIAN CLOTHIER & ORS Respondents REASONS FOR EXTEMPORE JUDGMENT CORAM: WILCOX J DATE: 31 OCTOBER 1984 PLACE: SYDNEY The matter before the Court 1s an Application under the Administrative Decisions (Judicial Review) Act 1977 1n respect of a decision by the first respondent to commit for trial the applicant in respect of four matters arisina under the Customs Act 1901. These consist of two charges of conspiracy to import prohibited imports. a charge that the applicant was knowinaly concerned in the importation of a prohibited import contrarv to the Act. and a charae of importina a prohibited import. The imports referred to were cannabis resin, and the events are alleged to have occurred between 14 November 1982 and 19 January 1983. The applicant was charaed with others. and the proceedinas 2. were heard in the Magistrates Court at Melbourne in Mav 1984. On 14 May 1984 the applicant was committed for trial on all four charges. When the present Application came before me in the directions list, I directed that particulars of the arounds of review be supplied to the respondents and a copy filed with the Court. The first around that was relied upon in the particulars filed related to the circumstance that the applicant had been extradited from New South Wales Wales to Victoria on one only of the charges, namelv. conspirina with Patrick Edward Templer and Wayne Morris. When the applicant reached Melbourne, additional charges were added. However. at the commencement of argument todav. Mr Papavanni. on behalf of the applicant, expresslv abandoned anv reliance on this matter. The remainina matters in respect of which a challenge is made to the maqistrate's decision depend upon the sufficiency of the evidence to iustifv the maqistrate's finding that a prima facie case existed and his decision to commit for trial. Those matters mav be conveniently considered in two separate classes. In the first class were submissions that there were various aaps in the evidence relating to the circumstances in which certain telephone conversations, allegedly involvina the 3. applicant and the other accused persons, had been recorded. It was said, for example, that it was not shown that a particular series of master reels. which were tendered in evidence and which were alleged to contain conversations involving the applicant. had been connected to a particular telephone service in respect of which a warrant had been issued by a judge under s.20 of the Telecommunications (Interception) Act 1979. The other matters of evidence which the applicant sought to araque included a complaint that. in respect of various matters, insufficient weight was aqiven by the magistrate. I- indicated to counsel for the applicant my view that it was inappropriate for this Court, in the exercise of its discretion. to become involved in a consideration of the details of evidence aiven before the magistrate. particularlv in respect of matters which might well be cured at the trial. Counsel also raised the question whether there was evidence to indicate the existence of a conspiracy. This latter matter would have required the Court to consider the total volume of evidence, which was voluminous. as well as the content of the 107 master reels. For the Court to become involved in those matters, would have had the result of interposinag a third hearing and determination of matters of fact in respect of a procedure where the law contemplates a hearing at first instance bv a 4. magistrate to consider whether there is a prima facie case and then, if there is a trial, a determination of fact by a criminal court. For reasons which have been explained in a number of cases, 1t is undesirable for a superior court to become involved in a determination of such matters. In Souter v Webb (unreported 11 Julv 1984) I collected and referred to the various decisions in this Court and in the Supreme Court of New South Wales in which the view had been expressed that, as a matter of discretion, a superior court should not become involved in such inquiries. In this Court, the leading authoritv is Lamb_v Moss (1983) 49 ALR 533 in which a Full Bench of the Court made this observation at page 564: "It is sufficient, for immediate purposes, to observe that there 13 a considerable bodv of authoritative judicial opinion that exceptional circumstances will qenerallv be reauired before a superior court will consider interfering in commital proceedinas, particularlv at an interlocutorv stage. Failure to permit criminal proceedinas to follow their ordinary course will. in the absence of special circumstances. constitute an error of principle". Lamb v Moss was a case in which review was sought of the conduct of the maqistrate during the committal proceedings: but the principle also applies to decisions bv a magistrate as to the existence. or otherwise. of a prima facie case: see Bourke v 5. Hamilton (1977) 1 NSWLR 470, Gorman v Fitzpatrick (Foster J, 23 September 1983, unreported), Seymour v Attorney-General (Fitzgeraid J, 8 May 1984, unreported). It seems to me that all of the matters which are in the first class are classically matters subject to the principle in Lamb v Moss. Their determination would rquire this Court to spend a considerable time reviewing the facts of the case and, in effect, determining whether or not the magistrate reached a correct conclusion on the facts in holding that there existed a prima facie case. The Court would do so without the benefit of hearing or seeing anv of the witnesses, but simply on the basis of reading the transcript and looking at the exhibits - includina listening to the various tapes. As a matter of discretion. the court ought not to exericse its powers under the Administrative Decisions (Judicial Review) Act to undertake that task. I adhere to the view which I expressed in Souter v Webb that the Court should entertain a submission for review. upon the aground that there is no prima facie case, of a maqistrate's decision to commit only where it is abundantlv clear, without intricate consideration of the evidence, that there is a failure to establish a necessarv ingredient in the charae. The second class of issue falls into a sliahtlv different cateqory. Counsel for the respondents has aareed with the statement made by counsel for the applicant that the tapes were critical to the prosecution case. Indeed, he has indicated 6. that, in the absence of the tape recordings, there would not be evidence sufficient to justify the committal of the applicant for trial. Mr Papavanni. on behalf of the applicant, has arqued that the tape recordings did not comply with the requirements of s.7(6) of the Telecommunications (Interception) Act 1979. There was evidence that a warrant had been issued under s.20 of that Act in relation to a particular telephone service. and the suggestion is that the reels which were tendered in evidence were recordings of conversations made by persons communicating from or to that service. The proposition for which Mr Papavanni contends is that. if recordina equipment which is not under the control of the Telecommunications Commission is used in an interception. the interception is unlawful - notwithstanding the existence of a warrant. I confess that I have considerable difficultv in seeing the validitv of this arqument. It seems to me that s.20 is, in its terms, addressed to the interception of a communication to or from a service under the control of the Telecommunications Commission; but I see nothing in the definition of "communication" to indicate that the equipment used to record the communication must itself be under the control of the Telecommunications Commission. The question arises in this case because the evidence before the magistrate was that the recording equipment used to record the alleaqed conversations was owned and controlled by the 7. Australian Federal Police and not by the Telecommunications Commission. However, the argument did not reach finality because discussion occurred between counsel for the applicant and mvself - as to what would be the result of his proposition. if correct. Mr Papayanni conceded that, even if there had been an interception which went bevond the authoritv of the warrant. that fact did not, of itself, make the evidence inadmissible. He acknowledged that. in those circumstances, the magistrate would have had a discretion to determine whether or not to admit the evidence. I suggested to counsel that. consistently with the view I had expressed about the use of the Administrative Decisions (Judicial Review) Act, it may be appropriate to consider the argument as to the compliance with the reauirements of s.7 of the use of non-Telecommunication Commission equipment and that, if that arqument was made out, it mav be a proper course to remit the matter to the magistrate in order that he might consider whether he would admit the material in the exercise of his discretion. I made that suagestion without anv firm view as to whether or not that would be an appropriate course, but because it appeared to me that the question raised under s.7 mav be a discreet issue of principle not turning upon the detail of the particular case. However, Mr Papayanni indicated that he did not wish to pursue the araument if, in the end result. the matter would at best. from his point of view, be remitted to the magistrate; and in those circumstances he indicated that he did 8. not wish to pursue this second aspect of the matter. Consequently, I have not heard full arqument, and I express no concluded view. All that I will say is that I am far from _ persuaded that the fact that non-Telecommunications Commission equipment is used to record a communication, the subject of a warrant under s.20, results in anv failure to comply with anv provision in the Telecommunications (Interception) Act, or would require a court to consider whether it was necessarv to exercise a discretion in favour of admission of the material. In the circumstances, I have not heard counsel for the respondents other than to obtain some assistance from them as to the facts of the matter and the nature of the issues. In effect, the applicant has desisted from putting full arqument on the evidentiary matters because of the view I have expressed as to the wav in which the Court should approach the case. The applicant does not consent to the dismissal of the Application but accepts that this result is the inevitable result of mv view. For that reason only the matter has not been fullv debated. The order I make is that the Application be dismissed and that the applicant pav the costs of the respondents. I certify that this and the seven (7) preceding pages are a true copy of the Reasons for Judgement herein of his Honour Mr Justice Wilcox. ~ Associate Peller Date 31/1 [+ 372 CATCHHORDS Be ADMINISTRATIVE LAW - Judicial Review - Criminal charaes - Committal proceedings - Application for review of decision to commit for trial - Application requiring detailed consideration of evidence - Whether court should, in the exercise of its discretion. entertain Application - Effect of non-compliance with Administrative Decisions (Judicial Review) Act 1977 s.5 Gee] elecommunications (Interception) Act 1979 s.7 ANTHONY EUSTACE v BRIAN CLOTHIER & ORS G.184 UF 1984 WILCOX J 31 OCTOBER 1984 SYDNEY IN_THE FED) COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G.184 of 1984 ed GENERAL DIVISION BETWEEN : ANTHONY EUSTACE Applicant AND: BRIAN CLOTHIER & ORS Respondents REASONS FOR EXTEMPORE JUDGMENT CORAM: WILCOX J DATE: 31 OCTOBER 1984 PLACE: SYDNEY The matter before the Court 1s an Application under the Administrative Decisions (Judicial Review) Act 1977 in respect of a decision by the first respondent to commit for trial the applicant in respect of four matters arising under the Customs Act 1901. These consist of two charges of conspiracy to import prohibited imports. a charge that the applicant was knowinaly concerned in the importation of a prohibited import contrarv to the Act. and a charae of importing a prohibited import. The imports referred to were cannabis resin. and the events are alleged to have occurred between 14 November 1982 and 19 Januarv 1983. The applicant was charaed with others, and the wroceedinas ——_—_ SO 3. applicant and the other accused persons, had been recorded. [It was said, for example, that it was not shown that a particular series of master reels, which were tendered in evidence and which . were alleged to contain conversations involving the applicant, had been connected to a particular telephone service in respect of which a warrant had been issued by a judge under 3.20 of the Telecommunications (Interception) Act 1979. The other matters of evidence which the applicant sought to arque included a complaint that. in respect of various matters, insufficient weight was aqiven by the magistrate. I indicated to counsel for the applicant my view that it was inappropriate for this Court, in the exercise of its discretion, to become involved in a consideration of the details of evidence aiven before the magistrate, particularly in respect of matters which might well be cured at the trial. Counsel also raised the question whether there was evidence to indicate the existence of a conspiracy. This latter matter would have required the Court to consider the total volume of evidence, which was voluminous. as well as the content of the 107 master reels. For the Court to become involved in those matters. would have had the result of interposing a third hearing and determination of matters of fact in respect of a procedure where the law contemplates a hearing at first instance bv a 5. Hamilton (1977) 1 NSWLR 470, Gorman v Fitzpatrick (Foster J, 23 September 1983, unreported), Seymour v Attorney-General (Fitzgerald J, 8 May 1984, unreported). It seems to me that all of the matters which are in the first class are classically matters subject to the principle in Lamb v_ Moss. Their determination would rquire this Court to spend a considerable time reviewing the facts of the case and, in effect, determinina whether or not the magistrate reached a correct conclusion on the facts in holding that there existed a prima facie case. The Court would do so without the benefit of hearing or seeing anv of the witnesses, but simply on the basis of reading the transcript and looking at the exhibits - including listening to the various tapes. As a matter of discretion, the court ought not to exericse its powers under the Administrative Decisions (Judicial Review) Act to undertake that task. I adhere to the view which I expressed in Souter v Webb that the Court should entertain a submission for review. upon the ground that there is no prima facie case, of a maqgistrate's decision to commit only where it is abundantly clear, without intricate consideration of the evidence, that there is a failure to establish a necessarv inaredient in the charae. The second class of issue falls into a sliahtlv different cateaqoryv. Counsel for the respondents has aaqreed with the statement made bv counsel for the applicant that the tapes were critical to the prosecution case. Indeed. he has indicated — 7. Australian Federal Police and not by the Telecommunications Commission. However, the argument did not reach finality because discussion occurred between counsel for the applicant and mvself - as to what would be the result of his proposition. if correct. Mr Papayanni conceded that. even if there had been an interception which went beyond the authoritv of the warrant, that fact did not, of itself, make the evidence inadmissible. He acknowledged that. in those circumstances, the magistrate would have had a discretion to determine whether or not to admit the evidence. I suggested to counsel that. consistently with the view I had expressed about the use of the Administrative Decisions (Judicial Review) Act. it mav be appropriate to consider the argument as to the compliance with the reauirements of s.7 of the use of non-Telecommunication Commission equipment and that. if that arqument was made out, it mav be a proper course to remit the matter to the magistrate in order that he miaht consider whether he would admit the material in the exercise of his discretion. I made that suqgestion without anv firm view as to whether or not that would be an appropriate course, but because it appeared to me that the question raised under s.7 mav be a discreet issue of principle not turning upon the detail of the particular case. However, Mr Papavanni indicated that he did not wish to pursue the arqument if, in the end result. the matter would at best. from his point of view, be remitted to the magistrate: and in those circumstances he indicated that he did