Administrative law - judicial review - decision under s.41 of Justices Act. 1902 (NSW) to commit applicant upon charge of attempting to pervert the course of justice - consideration of circumstances 1n which Court will review committal proceedings - whether magistrate erred in law in applying sub-s.41(2) and (6) of the Act - meaning of "likely" in sub-s.41(6) - whether facts supported by evidence sufficient to establish actus reus of the offence charged - whether court should be satisfied that case involves exceptional circumstances before considering sufficiency of evidence - statement of proper approach to be taken by Court in considering whether to exercise its discretion to review a decision to commit Administrative Decisions (Judicial Review) Act 1977 Crimes Act 1914 s.43 Justices Act, 1902 (NSW) s.41 LIONEL KEITH MURPHY v. DIRECTOR OF PUBLIC PROSECUTIONS and ARTHUR RIEDEL No. NSW G108 of 1985 TOOHEY J. PERTH 29 MAY 1985 ray IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION No. G1l08 of 1985 BETWEEN: LIONEL KEITH MURPHY Applicant and DIRECTOR OF PUBLIC PROSECUTIONS First Respondent ARTHUR RIEDEL Second Respondent MINUTE OF ORDER JUDGE MAKING ORDER Toohey J. DATE OF ORDER 29 May 1985 WHERE MADE Perth THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the first respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules € IN THE FEDERAL COURT ' OF AUSTRALIa 1 NEW SOUTH WALES ' DISTRICT REGISTRY ) GENERAL DIVISION i No. GluB of 1385 BETWEEN: LIUVNEL KEITH MURPHY Applicant and DIRECTOR OF PUBLIC PROSECUTIONS First Respondent ARTHUR RIEDEL Second Respondent CORAM: TOOHEY J. 29 MAY 1985 REASONS FOR JUDGMENT This is an application under the provisions of the Administrative Decisions (Judicial Review) Act 1977. The applicant seeks a review of two decisions of the second respondent, a magistrate of the Local Court of New South Wales, made in committal proceedings on a charge laid against the applicant by the first respondent under s.43 of the Crimes Act 1914 of the Commonwealth. Section 43 of the Crimes Act reads: "43. Any person who attempts, in any way not specially defined in this Act, to obstruct, prevent, pervert, or defeat the course of 2. justice in relation to the judicial power of the Commonwealth, shall be guilty of an offence. Penalty: Imprisonment for two years". The charge against the applicant was in these terms. "That between the ist day of July, 1983 and the 9th day of July, 1983 at Sydney in the said State and elsewhere Lionel Keith Murphy whilst a Justice of the High Court of Australia did attempt to pervert the course of justice in relation to the judicial power of the Commonwealth in that he did attempt to cause Paul Francis Flannery, a Judge of the District Court of the said State, to act otherwise than in accordance with his duty with respect to the trial of the count of conspiracy under s.86(1) of the Crimes Act 1914 against one Morgan John Ryan which commenced before his Honour and a jury on llth July, 1983". Two decisions of the second respondent are under challenge. The first, made 16 April 1985, was a decision pursuant to sub-s.41(2) of the Justices Act 1902 of New South Wales that the evidence was capable of satisfying a jury beyond reasonable doubt that the applicant had committed the offence with which he had been charged. The second decision, made 26 April 1985 pursuant to sub-s.41(6) of the Justices Act, was that the second respondent was not of the opinion that a jury was not likely to convict the applicant of the charge in question. As a consequence of these decisions the applicant was committed for trial on the charge. The grounds of the application are formulated in broad terms as follows: "lL. that the decisions involved an error of law, 2. that there was no evidence or other material to justify the making of the decisions, 3. that the decisions were otherwise contrary to law". The second ground is essentially a "no evidence" contention to which I shall refer in greater detail later in these reasons. The first ground, as amplified by counsel for the applicant, 1s that the second respondent erred in his understanding and application of sub-ss.41(2) and (6) of the Justices Act. The third ground, counsel acknowledged, 1s simply another way of making the same point. The applicant stands charged with another offence against s.43 of the Crimes Act. This charge also relates to the trial of Morgan John Ryan mentioned in the charge the subject of this application. The offence alleged relates to the conduct of the applicant in relation to the then Chief Stipendiary Magistrate, Mr. Briese. The applicant was committed for trial on this charge by the second respondent at the same time as he was committed for trial on the charge relating to Judge Flannery. The second respondent's decision to commit the applicant for trial in respect of the charge relating to Mr. Briese is not the subject of any application to this Court. I mention it because it was referred to by counsel in the course of their submissions, though for 4. different purposes. It was mentioned by Mr. Shand Q.C., senior counsel for the applicant, in the context of caveats issued from time to time by the Federal Court against the use of the Judicial Review Act in regard to committal proceedings. It wiil be necessary to refer to those caveats later in these reasons. Mr. Shand acknowledged that in the light of the Federal Court decisions it would be inappropriate to seek to persuade the Court to undertake a detailed review of the evidence in relation to the charge concerning Mr. Briese. But, in his submission, the decisions made by the second respondent in respect of the charge relating to Judge Flannery were sufficiently exceptional to justify invoking the provisions of the Judicial Review Act in relation to that charge. Mr. Callinan 9.C., senior counsel for the first respondent, mentioned the charge relating to Mr. Briese in the context of a submission that this Court should not entertain the application to review and should decline to interefere with the committal for a number of reasons including the fact that the charge in relation to Judge Flannery could not be divorced from the charge in relation to Mr. Briese. When the hearing of this application began Mr. Callinan invited me to make a preliminary finding that this application did not fall within the description of "most exceptional cases" used by the Full Court of this Court in Lamb v. Moss (1983) 49 ALR 533. I declined to take this course on the ground that to do so would fragment the hearing and might lead to undue delay. Counsel were therefore invited to make full submissions on all matters thought to be relevant. That is not to say that the question of discretion does not remain to be considered. It does, but against 5. the background of the various submissions made by counsel for the parties. In several decisions the High Court has_ strongly cautioned against the use of declaratory relief which impinges directly upon the course of proceedings in a criminal matter. It is necessary to mention only two passages from the judgments. In Sankey v. Whitlam (1978) 142 CLR 1 at p.26 Gibbs A.C.d. said: "Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it 1s necessary in the interests of justice to make a declaratory order". Later in Clyne v. Director of Public Prosecutions (1984) 58 ALJR 493 at p.494 Gibbs C.J. said: "This Court has in a number of cases said that it is wrong that the ordinary course of proceedings in the criminal courts should be interrupted by applications for declarations as to questions that will or may arise in the criminal proceedings". See also Iorlano (1983) 58 ALJR 22. To the best of my knowledge the High Court has not yet had occasion to pronounce on the use of the Judicial Review Act in committal proceedings. However in Lamb v. Moss, which was an application under the Judicial Review Act, Bowen C.J., Sheppard and Fitzgerald JJ. took a similar approach to that taken by the High Court. At p.564 they said: "The power to make an order of review under the Act in respect of committal proceedings should be exercised only in most exceptional cases, especially in respect of a decision in the course of praceedings. Additional considerations might intrude at the final stage; for example, in respect of committal for trial and commitment to prison pending trial ... It 18, however, mot necessary to consider that question further in these proceedings". Since Lamb v. Moss, similar caution has been urged by judges of this Court sitting at first instance. It is unnecessary to mention the particular decisions; some are noted by Sheppard J. in the most recent relevant decision - Foord v. Whiddett (unreported decision, delivered 14 May 1985). At p.18 of his reasons for judgment, Sheppard J. said: "In some cases a distinction is drawn between the approach the Court should take in relation to the exercise of its discretion in cases involving the review of decisions made in the course of committal proceedings and decisions which have involved the actual committal of accused persons. I would not myself have thought that very different considerations applied and that the same approach should be adopted in relation to discretion as regards those decisions also". I would not dissent from that general proposition except to say that once committal proceedings have been completed an applicant may more readily be able to show that there are exceptional circumstances. See Wong v. Evans (unreported decision of Wilcox J., delivered 12 February 1985) at p.16. But that of course must depend upon the circumstances of the particular case. 7. Before dealing with the "no evidence" submission, it is appropriate to look at what were said to have been errors of law on the part of the second respondent in reaching each of the decisions the subject of challenge. Section 41 of the Justices Act was last amended by the Justices (Amendment) Act 1985. It was common ground that the section, in 1ts present form, applied to the decisions made by the second respondent which are the subject of this application. It 18 necessary to set out only sub-s.(2) and (6) together with sub-s.(8) which has a bearing on the other two sub-sections. "(2) When all evidence for the prosecution has been taken, the Justice or Justices shall, after considering all the evidence before the Justice or Justices - (a) if not of the opinion referred to in paragraph (b) - forthwith order the defendant to be discharged as to the information then under inquiry; or (b) if of the opinion that, having regard to all the evidence before the Justice or Justices, the evidence is capable of satisfying a jury beyond reasonable doubt that the defendant has committed an indictable offence - (i) if the defendant is present - proceed as provided by subsections (4), (5) and (6); or (ii) if the defendant is not present - proceed as provided by subsection (6). (6) When all the evidence for the prosecution and any evidence for the defence have been taken, the Justice or Justices shall, after considering all the evidence before the Justice or Justices - a. (a) if of the opinion that, having regard to all the evidence before the Justice or Justices. a jury would not be likely to convict the defendant of an indictable offence - forthwith order the defendant to be discharged as to the information then under inguiry; or (b) aif not of that opinion - commit' the defendant for trial. (8) A reference in this section to a jury 1s a reference to a reasonable jury properly instructed". The recent amendments made to s.4l were, it appears, brought about by comments made by the Court of Appeal in Wentworth v. Rogers £19843 2 NSWLR 422, in particular by the analysis by Glass J.A. of s.4l1 as it then stood. For the purpose of this application it is ummecessary to refer in any detail to the judgments in Wentworth v. Rogers; rather the question is whether the second respondent properly construed and applied the relevant provisions. In saying this, I do not overlook the submission of counsel for the first respondent that this Court should not be concerned with the correctness or otherwise of the second respondent's approach to s.4l1 for, it was said, an error of law would not of itself constitute exceptional circumstances. This submission, I think, goes too far for it is possible to imagine an error of law made in the course of a decision to commit for trial which 1s so fundamental as to warrant the intervention of the Court on an application under the Judicial Review Act. I propose therefore to look at the attack made on the second respondent's understanding of s.41 of the Justices Act. On 16 April 1985 the second respondent concluded: "Having considered the whole of the evidence I am of the opinion that the evidence 15s capable of satisfying a jury, properly instructed, beyond reasonable doubt that the Defendant has committed the two indictable offences charged". This is the language of para. 41(2)(b). However it was the applicant's submission that when the reasons of the second respondent are viewed in their entirety, 1t is apparent that he did not apply the test required by the paragraph. I do not accept this submission. In his decision of 16 April 1985 the second respondent approached sub-s.41(2) in various ways. He spoke of it as "a screening stage", adding "If there 1s a sufficient hasis to put the defendant on his trial the court moves onto the next stage ...". Later he said "It is a question whether the evidence could reasonably be accepted and if on the totality of it a jury could be satisfied to the required degree". Further on he commented: "TI am also attracted to May v. O'Sullivan, supra, which, whilst relating to summary proceedings is nevertheless considered to be of relevance. That case sets out the test to be applied in determining whether to call upon a defendant at the close of the prosecution case. That test involves a finding of law and I believe the test under the new sub-section also involves a finding of law. It 15 my view that the two tests are essentially the same". May v. O'Sullivan (1955) 92 CLR 654 was concerned with the burden of proof when the prosecution, 1n a criminal case, has made out a prima facie case. At pp.658-659 the Court, in a joint judgment, said: 10. "When, at the close of the case for the prosecution, a submission is made that there 1s 'no case to answer', the question to he decided 1s not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law. Unless there 1s some special statutory provision on the subject, a ruling that there 18 'a case to answer' has no effect whatever on the onus of proof, which rests on the prosecution from beginning to end. After the prosecution has adduced evidence sufficient to support proof of the issue, the defendant may or may not call evidence. Whether he does or not, the question to be decided in the end by the tribunal is whether, on the whole of the evidence before it, it is satisfied beyond reasonable doubt that the defendant 1s guilty. This 1s a question of fact. ... A Magistrate who has decided that there isa 'case to answer' may quite consistently, if no evidence is called for the defendant, refuse to convict on the evidence for the prosecution. The prosecution may have made 'a prima facie case', but does not follow that in the absence of a 'satisfactory answer' the defendant should be convicted". While May v. O'Sullivan was not concerned with a decision to commit for trial, as the second respondent recognised, I do not think that the second respondent's reliance upon it in any way led him into error. It is apparent that he drew on the decision to pose the question whether on the evidence as it stood the applicant could lawfully be convicted of the charges against him. He acknowledged that "a finding of law" was required and his conclusion that "the whole of the evidence has to be capable of satisfying a jury beyond reasonable doubt" 1s in accord with the requirements of para. 41(2)(b). It is not without interest that in Wentworth v. Rogers, Glass J.A. drew on May v. O'Sullivan ina somewhat similar way for the purposes of sub-s.41(2) as it then stood. His Honour said at p.429: 11. "The powers of the magistrate at the close of evidence for the prosecution are not open to doubt; s.41(2). He is required to rule upon the sufficiency of the evidence. Accordingly he must disregard any evidence favouring the defendant and have regard only to that evidence which favours the prosecution; R. v. Rothery (1925) 25 SR (NSW) 451 at 461; 42 WN 141. It is not his function to weigh the evidence or assess its acceptability whether in relation to the character of the evidence itself or the credibility of the witnesses who gave it. He is required to assume that it 1s accepted without reservation by a jury; Jayasena v. The Queen £1970] AC 618 at 624. Upon that assumption he asks himself whether a jury accepting all the prosecution evidence could lawfully convict the defendant, May v. O'Sullivan (1955) 92 CLR 654 at 658, ie could acting reasonably be satisfied of the defendant's guilt beyond reasonable doubt". Me. Callinan submitted that the second respondent applied, to the advantage of the applicant, a more favourable test than he was obliged to. I express no view on that submission; it is enough for the purposes of this application to say that I am not persuaded that there was error on the part of the second respondent in his appreciation of sub-s.41(2). Mr. Shand's attack on the second respondent's approach to sub-s.42(6) of the Justices Act was made in this way. When sub-s.(6) is read with sub-s.(8), 1t is apparent that a justice must, after considering all the evidence for the prosecution and any evidence for the defence, form the opinion in para. (a) of sub-s.(6) or not form that opinion. The opinion identified in the paragraph is that "a jury would not be likely to convict the defendant of an indictable offence". If the justice forms that opinion, he must forthwith order the defendant to be discharged. 12. If he does not form that opinion, he must commit the defendant for trial. In the applicant's submission, it was critical to decide what was meant by the word "likely" in para. 41(6)(a). It was the applicant's further submission that the second respondent misdirected himself as to the meaning of that word and thereby fell into error. In his decision of 26 April 1985 the second respondent said: "Now I was, rather impressed by the work done by the Prosecution in searching out the meaning that had been attributed to the term, likely, and I've derived some assistance from their work. I've not had the chance to study it in detail but it seems to me that a meaning of tendency or real possibility to Cbe] consonant with the sub-section to be considered here. And that is the test that I would apply". Mr. Shand's argument on this point may be summed up in this way. The word "likely" is susceptible of various meanings (see Radio 2UE Sydney Pty. Ltd. v. Stereo FM Pty. Ltd. (1982) 44 ALR 557 at 564). The meaning to be ascribed to the word ina statute 1s to be determined in the first instance by examining the section and the Act in which it appears. When regard is had to s.41, it is apparent that the word bears a meaning that transcends the idea of "tendency" or "real possibility". In the context of para. 41(6)(a) the word means more probable than not. It follows that a justice must determine the probability of conviction, not merely a tendency or real possibility. Applying this test, the argument ran, the justice must consider whether it 1s more probable than not that a jury would convict the applicant of the 13. otfence with which he 1s charged, an exercise which requires the qustice to consider whether or not each essential element of the charae has been proved bevond reasonable doubt. [If then of the opinion that a iury would not be likely to convict the appplicant, he must forthwith order him to be discharged. For the purposes of the present application I am prepared to assume, without deciding, that Mr. Shand's submission as to the meaning of "likely" in para. 41(6)(a) 1s correct. But in my opinion 1t does not follow that the second respondent erred; importantly, it does not follow that there was an error such as to justify a review by this Court. The second respondent's decision of 26 April 1985 was ex tempore, given after a short adjournment following submissions made by counsel for the applicant and the first respondent and following a statement made by the applicant which, counsel agreed, should not be regarded as "evidence for the defence" within sub-s.41(6). In relation to sub-s.41(6) the second respondent began in this way. "The test there to be applied is whether having considered all the evidence, I'm of the opinion that a jury would not be likely to convict the Defendant, that is the question which I must ask myself, and when considering a jury in that context it is of course by virtue of the new ss.8, a reasonable jury properly instructed". Later he said: "standing at follows, Later he 14. "The Court has to evaluate the evidence as it stands and one would expect standing at its highest especially 1f the defence is not elected to call evidence. And in this valuation of the evidence the Court will examine the internal consistency of the evidence and the overall strength of the Prosecution case. I believe the Court must also look at the credibility of witnesses and form some view on whether a jury is likely to accept their testimony. In short 1s their testimony likely to be seen as truthful and reliable by a /jurv, the Court ultimately weighing the credibility of witnesses, conflicts in testimony, inconsistencies and any reasonable alternative explanations forthcoming will form an opinion as whether a jury properly instructed would be likely to be satisfied beyond reasonable doubt". second respondent's reference to the evidence its highest" must be read in from which it is apparent that he was conscious of the need to scrutinize with care the evidence for the prosecution. made the comment regarding the meaning of "likely" to which reference has already been made. Thereafter he said: "It was my view then and still is that a jury could well form the view from the facts, as I believed they could be found that they had the tendency to pervert the course of justice and that was the only tendency. Now since these matters were last before the Court I have again examined the evidence, I've carefully considered what has been put to me today by Counsel. I've looked at the evidence to see not what a jury could do on this occasion but a reasonable jury composed of fair minded men and women would be likely to do". At the close of his reasons the second respondent said: "I have considered again the various points made by the defence at the earlier hearing conjunction with what 15. and aqain todav. I do not consider that these sinaglv or collectivelv are such as would clearly raise a doubt in the collective mind of the jury. When the whole of the evidence is examined I believe that' the inferences urged by the prosecution, not only could be drawn by the jury but in fact would be likely to be drawn. And considering the whole of the evidence then, I am not of the opinion that a jury 1s not likely to convict the defendant on either charge and accordingly I propose to commit the defendant for trial on both charges". The reasons for decision of 26 April 1985 must be read in their entirety. When they are so read I am not persuaded that the second respondent erred in his approach to sub-s.41(6). The opinion required by para (a) of the sub-section is not a subjective opinion. It is an opinion reached by bringing a judgment to bear on facts which a jury may properly find established by the evidence or inferences they may properly draw from facts so found. On a fair reading of the reasons for decision, it seems to me that the second respondent was applying a test more favourable to the applicant than a "tendency" or "real possibility" test. He spoke of the need for the prosecution to eliminate any reasonable hypothesis and of the onus upon the prosecution, in cases involving circumstantial evidence, to eliminate all rational inferences other than those consistent with quilt. He also stressed that inferences can only be drawn from facts proved beyond reasonable doubt. When the reasons for decision of 26 April 1985 are read in their entiretv, I am of the opinion that whether the second respondent applied a "tendency", "real possibility" or "more likely than not" test the result would have been the same, that he 16. was not of the opinion identified in para. 41(6)(a). He was not of that opinion because he was of the opinion that a jury was likely to draw the inferences that it would be invited by the prosecution to draw. Counsel for the applicant acknowledged that if only the ground relating to sub-s.41(6) were made good, the result would be a remission of the matter to the second respondent to reconsider his opinion. In such a case there 15S no reason to think that the result would be any different. In my view this ground does not make the case exceptional and I must, in accordance with the dictates of Lamb v. Moss, exercise my discretion against an order to review the decision of 26 April 1985 on this ground. I do not overlook Mr. Shand's submission that para. 41(6)(a) obliges a justice to discharge a defendant forthwith if of the opinion mentioned in the paragraph. But for the reasons just given Ido not think that this assists the applicant. A further attack made on the decisions of the second respondent was that "there was no evidence or other material to justify the making of the decisions". This attack on the decisions was presented ina precise and carefully formulated way. Mention has already been made of the terms of s.43 of the Crimes Act andit is enough, for present purposes, to note that the section makes it an offence to attempt to pervert the course of justice. Although there was an issue between counsel as to the meaning of "attempts" in s.43, in particular whether the section incorporates the general law relating to attempts to commit offences, it was mot in issue that there must be an intention on the part of the person charged to commit the offence. Mr. Shand 17. argued that 1t was unnecessarv for this Court to consider the question of intention because there was no evidence that could constitute the actus reus of the offence of attempting to pervert the course of justice. His argument on this point may be summed up in the following way. The evidence before the _ second respondent went no further than to show that between 1 July and 5 July 1983 the applicant who had known Judge Flannery for about 30 years invited him with Mrs. Flannery to dinner for the first time. Judge Flannery and Mrs. Flannery dined with the applicant and his wife at the applicant's Sydney flat on 9 July 1983. At that time the trial of Morgan Ryan on a charge of conspiracy was pending and Judge Flannery had been assigned to preside at Mr. Ryan's trial. At no time before or during Mr. Ryan's trial did the applicant mention Ryan or the trial or any matter relating to it to Judge Flannery. At the dinner party on 9 July 1983 the applicant and Judge Flannery discussed several legal topics including Hoar's case, a decision of the High Court now reported as The Queen v. Hoar (1981) 148 CLR 32. In Hoar's case Gibbs C.J., Mason, Aickin & Brennan Jd. expressed disapproval of the practice of charging a person with conspiracy "when a substantive offence has been committed and there is a sufficient and effective charge that this offence has been committed" (at p.38). In a concurring judgment the applicant expressed in strong terms his disapproval of the use of conspiracy charges, concluding at p.41: "History shows that the administration of justice will be well served if courts keepa tight reign on the spawning of conspiracy charges". Against objection from the applicant's counsel, the second respondent admitted evidence that Mr. Ryan's solicitor, Mr. 18. Miles, made a submission to the trial tudage, Judae Flannery, on 11 July 1983 that included a reference to Hoar's case. There was further evidence before the second respondent that on 8 July 1983 the Chief Justice of the High Court of Australia delivered his "State of the Australian Judicature" address in Brisbane in which he criticised the use of conspiracy charges where substantive charges were available, referring to the fact that the High Court had recently commented on the practice; and that the Chief Justice's remarks were reported throughout Australia on 9 July, including in the Sydney Morning Herald of that date. There was evidence that Judge Flannery probably read the Sydney Morning Herald on 9 July and that Mr. Miles, in asking for the indictment against Mr. Ryan to be quashed, referred Judge Flannery to the newspaper reports of the Chief Justice's remarks and handed him a copy of a newspaper report. The second respondent found that there was no evidence establishing any comnection between the applicant and the submission made by Mr. Miles on 11 July 1983. In the applicant's submission, any facts supported by the evidence to which reference has just been made could not amount to the actus reus of the offence of attempting to pervert the course of justice contrary to s.43 of the Crimes Act. The submission was amplified in this way. There must be an identifiable actus reus which in turn must comprise some identifiable act of a substantial nature, citing White v. R. (1906) 4 CLR 152; 1t cannot be something of an imaginery, speculative or purely ephemeral nature. Counsel made a detailed analysis of the evidence relating to the relationship and contact 19. between the applicant and Judge Flannery. the evidence relating to Mr. Ryan's trial and the evidence relating to Hoar's case. In answer to a question from me as to the actus reus upon which the Crown relied, Mr. Callinan replied that the principal act was the reference by the applicant to his judgment in Hoar's case at the dinner party but that the significance of the reference took 1ts colour from all the circumstances including the absence over a period of 25 years of the contact initiated by the applicant which led to the dinner party. Mr. Callinan amplified this reply by referring in a general way to evidence to which Mr. Shand had not referred and which, in Mr. Callinan's submission, was relevant to the charge concerning Judge Flannery. Primarily the submission made on behalf of the first respondent was that the applicant, while acknowledging the need to establish exceptional circumstances before this Court would exercise its discretion to review the decisions of the second respondent, nevertheless invited the Court to conclude that there was no evidence of any actus reus and on this basis to find a sufficient justification to review the decisions. In the first respondent's submission, this approach put the cart before the horse. The Court should first be satisfied of exceptional circumstances before embarking on a consideration of the evidence and, exceptional circumstances having not been demonstrated, the Court should decline to review the decisions. In particular it was said that the Court could not reach a conclusion as to the sufficiency of evidence without having regard to the entirety of the material before the second respondent including material relating to the charge involving Mr. Briese. It was the first respondent's case 20. that the evidence presented to the second respondent, taken in 1ts entirety. demonstrated a course of conduct by the applicant desianed to achieve favourable treatment tor Mr. Ryan in the course of his trial, treatment that was not only favourable but in the circumstances improper. The parties urged on the Court two quite different approaches. Mr. Shand, for the applicant, invited the Court to look at the evidence relating to Judge Flannery and to conclude that nowhere in that evidence can be found a fact or facts constituting the actus reus of the offence with which the applicant 1s charged. It followed, according to the submission, that there was simply no proper basis on which the applicant could be committed for trial, hence this was a case of exceptional circumstances and the Court should review the second respondent's decisions. Mr. Callinan, for the first respondent, argued that exceptional circumstances should appear before the Court should embark upon an analysis of the evidence. In any event, he contended, the evidence that Mr. Shand asked the Court to consider was selective. In particular it omitted any reference to evidence bearing on the intention of the applicant. It failed to refer to the infrequency hitherto of social contacts between the applicant and Judge Flannery, to the inequality in their positions, toa conversation between the applicant and Judge Flannery after Mr. Ryan's trial, to the form of the submission made by Mr. Miles to Judge Flannery, to an approach made by the applicant to Chief Judge Staunton and to the persistence and content of approaches made by the applicant to Mr. Briese. All these matters, 1t was said, were relevant to the charge concerning Judge Flannery. In. my view, the course that I should follow lies somewhere between the approaches suqgested by counsel. In the present case there 1s an artificiality in attempting to assess the existence or otherwise of exceptional circumstances without some reqard to the evidence led at the committal proceedings. On the other hand, to look only to certain parts of the evidence, albeit the evidence relating directly to Judge Flannery, and to attempt to reach a conclusion that there was or was not evidence or other material to justify the making of the decisions would constitute an incomplete review. Such an approach would, I think, fail to have sufficient regard to the cautions expressed in the decisions of the High Court and of the Federal Court to which reference has already been made. In my opinion the proper approach to take is to consider, in a general way, what conclusions this Court would have to reach before being able to express a view as to the sufficiency of the material before the second respondent. That approach does not require the Court to reach a decision on each such matter; rather it is to consider the nature of the decisions that would have to be made. If, on such a consideration, it is apparent that conclusions would have to be made regarding the admissibility of evidence and some prognosis of the course atrial is likely to follow, it is almost inevitable that the Court must, in the exercise of its discretion, decline to review the decisions. If however 1t is possible to express a view as to the sufficiency of the evidence without reaching those sorts of conclusions, the case 1s more likely to be one in which it 1s appropriate for the Court to intervene. I propose now to look at the various matters that seem to me to arise for consideration before a decision could he made as to the sufficiency of the evidence. I emphasise that I do so only un a general wav. not for the purpose of reaching Particular conclusions but to test the appropriateness of reviewing the second respondent's decisions. The matters to which I now refer are not listed in any particular order, whether of importance or otherwise. i. Is the evidence that, on the trial of Mr. Ryan, his solicitor Mr. Miles made a submission that included a reference to Hoar's case admissible aqainst the applicant? In the absence of any evidence that Mr. Miles' submission was prompted directly or indirectly by anything said by the applicant, is such evidence admissible? If it 1s circumstantial evidence, its admissibility will depend upon the principles enunciated in authorities such as Straker (1977) 51 saLJR 690, Chamberlain (1984) 58 ALJR 133 ard in Briginshaw v. Briginshaw (1938) 60 CLR 336. 2. If the evidence is admissible, ought it be excluded in the exercise of the trial judge's discretion? 3. Is evidence relating to Mr. Briese admissible on the charge relating to Judge Flannery? The answer includes a consideration of admissibility of similar facts. Markby (1978) 140 CLR 108; Perry (1982) 150 CLR 580. 4. Is evidence of the applicant's conduct in relation to Mr. Briese, Chief Judge Staunton and Judge Flannery all admissible 23. as evidence of a general intention to assist Mr. Ryan on his trial? In particular, 15 evidence in relation to Mr. Briese and Chief Judge Staunton evidence of the applicant's intention at the time of speaking to Judae Flannery? The decision of the High Court in Plomp (1963) 110 CLR 234 may be relevant in this regard. 5. Does the evidence suggest a plan or design so as to make relevant the applicant's course of conduct in regard to Judge Flannery, and also to make relevant to that charge the evidence relating to the other charge? See Martin v. Osborne (1936) 55 CLR 367. 6. Is the conduct of the applicant in speaking to Judge Flannery capable of constituting an attempt to pervert the course of justice in terms of s.43 of the Crimes Act? Is the "attempt" of which the section speaks no more than a reference to conduct having a tendency to pervert the course of justice? Or does the section look to something more akin to the notion of attempt in the criminal law generally? In this respect authorities such as Vreones [18911 1 QB 360, Rowell £19783 1 All ER 665 and Machin £1980] 3 All ER 151 are material. 7. Is it enough to constitute an offence under s.43 that acts are done or words are used by a defendant which of themselves are capable of bringing about a result such as the section contemplates: or 1s the likelihood or probability of such a result a relevant consideration? Counsel referred to a number of United States authorities in this regard. 24. 8. On all the evidence before the second respondent. were there matters both of tact and law that would cause a reasonable Jury, properly instructed, to entertain at least a reasonable doubt that the charge against the applicant had been proved? If it be the case, as I hold it to be, that the sufficrency of the evidence or other material in relation to the charge concerning Judge Flannery cannot be determined until these questions have been answered, a review of the decisions under challenge would run counter to the admonitions of the High Court and of the Federal Court in the cases to which reference has been made. The questions posed are the sort of questions that arise day by day in the conduct of criminal trials, requiring a ruling from the presiding judge. The need for a trial judge to take particular care to ensure that no injustice arises where a defendant faces a joinder of charges 1s an attribute of many trials. Counsei for the applicant has indicated that 1f the charge relating to Judge Flannery proceeds to trial, the trial judge will be asked to withhold the charge from the jury, but that the applicant will have been prejudiced in respect of the other charge 1f the application is successful. But it would be quite wrong for this Court to attempt to place itself in the position of the trial judge and to make a decision by reference to what the trial judge may or may not do in response to such an application. In my view the very need to consider and answer the questions set out above demonstrates that this is not an exceptional case. Indeed it points up that what the Court is being invited to do is in effect to place itself in the position both of the magistrate and trial ludge and make notional rulings with a view to determining whether in the end there 1s or will be sufficient evidence to go to a Jury. In my respectful view, this 1s the very exercise that the courts have cautioned against in the context of a review such as the Judicial Review Act contemplates. The application will be dismissed. I certify that this and the twentyfovur preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Toohey bs Associate Dated: 29 May 1985 Q . he tse a "lee 1 '