plo ") IN_THE FEDERAL COURT OF AUSTRALTA J ) NEW SOUTH WALES DISTRICT PEGISTRY ) No. ) ) GENERAL DIVISION JUDGE: DATE OF ORDER: WHERE MADE: No. No. No. BETWEEN: G126 G396 G412 G101 of 1983 of 1984 of 1984 of 1985 ALEXANDER JOHN TAHMINDIIS NICHOLAS CASSIMATIS THOMAS ERVIN MOSS JOHN NICHOLAS CASTANOS AND: Applicants BRUCE RAYMOND BROWN First Respondent AND: 7.A.HAYNES PETER LAMB A.WELLS @.S8.FOSTER Second Respondents REASONS FOR ORDER FOX J. 5 June 1985 Sydnev. When I delivered mv reasons on the question of denial of natural justice, I stood over until 5 June three matters: (a) the question of costs. (b) settling of the form of other orders to be made. {c) directions as to the hearing of an issue 'outstanding. namely whether it was open to the Magistrate bearing in mind the terms of s.41A of the Justices Act, 1902 to make an order discharging the present applicants when the informants told the Magistrate that thev did not intend to proceed with the information alleging the general conspiracv, and to make an order for costs in their favour. This question remains a live issue. After hearing submissions. I have concluded that an order should be made in each case that the committal order be set aside, that the informant in each case pav the applicant's costs of the proceedings before me, limited in the case of Dr. Castanos to the employment of one counsel and that the hearing of the outstanding issue be fixed for an earlv date. I decided that I should refuse an application on behalf of Dr. Castanos to adda qround to his application to deal with the outstanding issue. The proceedings by the latter thereupon terminated. I excused counsel for the Magistrate from further attendance. wa) In relation to costs it was submitted on behalf of the informants (respondents before me) that thev should be required to pay only one set of costs. There were however four separate defendants (applicants before me) and each was entitled to present his case. Although counsel for the informants did not argue against the substance of what was put in relation to denial of natural dustice. this attitude was only announced during the course of the proceedings, no concession was made on behalf of the informants. and discretionary grounds had to be addressed. In addition. there was the backaround consideration that the prosecution knew, at the time. of the Magistrate's transgression. No order as to his costs was sought. The applicants submitted that I should make orders discharqing them from the general conspiracy charge and the lesser separate conspiracy charges. The Magistrate made his order discharging the other defendants after 18 Mav 1982. and. of course, had committed the remaining defendants on the other charges. It was not argued on this occasion, as it had not on earlier occasions. that the conduct in question of the Magistrate should be regarded as divorced from, or not connected to, the decisions reached thereafter. Particularly as knowledae of the relevant conduct was deliberatelv withheld from the defendants. the effect. it was accepted, carried to decisions such as that to charge the present applicants with the lesser conspiracies. The discharge of the defendants other than the present applicants was however the result of a statement bv the prosecution that it was not proceeding with the general conspiracy charade, and the Magistrate's orders for discharge were not the result of anv judgment, or discretion. on his part. He had taken a deliberate course to achieve that end, but there was the intervening independent decision of the prosecution. The discharge of the defendants (applicants), in relation to ' the qeneral conspiracy, or the lesser conspiracies, 'does not necessarily follow from the setting aside of the committal orders. The primary information 18 still on foot, so far as concerns the applicants. The matter of discharge is, as it seems to me, one for the Local Court. It is accepted that the first respondent cannot proceed with the matter (except. possibly, with the consent of all parties, which 1s not forthcoming). How the Court should act, and what it should do is a matter for it. The other principal submission was that I should make orders as to costs, in relation to the proceedings before the Magistrate. In this connection, it should be mentioned that after the general conspiracy charge was dropped the Crown, acting en behaif of the prosecution, agreed to pay the discharged defendants an amount for their costs. The present applicants were not discharged and the Magistrate took the view that he could not in that circumstance make any order for costs in their favour. The situation in this regard 1s. as I have said. stilla live issue. The requested orders for costs were in two parts, one for the period up to 18 May and the other for the subsequent period, until committal. As I indicated in the course of this last hearing before me. it does not seem to me that I can make any orders in this regard. The orders that should be made, or should have been made. are matters for the Magistrate hearing the matter. assuming, that is, that some order should be made in favour of the applicants. I am in no position to judge the amount to be fixed, or to evaluate all the circumstances which should be taken into account in fixing it. The fact that the committal orders are set aside (and other decisions after 18 Mav. so far as they involved the ¢éxercise of judgment or discretion relative to the charges, must also fall) does not necessarily mean that the defendants became entitled to all. or anv particular part. of their costs. The Registrar of this Court could not be asked to tax the costs. A magistrate making an order for costs determines an amount himself. Senior counsel for the prosecutors. wha appeared in the place of Mr. Temby, informed me that the latter. as Director of Public Prosecutions, had not vet taken over the matters under s.9(5) of the Director of Public Prosecution Act. I asked counsel how he saw the steps now to be taken in the prosecution case. I did this for a number of reasons. I wanted to know the realitv Dr of the current situation, arqument on both sides having discussed different possibilities; I was concerned about injustice in relation to costs, and otherwise. and I wanted to see whether the outstanding issue was really one requiring to be dealt with. Unfortunatelv, counsel's instructions did not enable him to qive any meaningful assistance. The possibilities mentioned included reliance on the general conspiracy as against the present applicants (possibly without re-charqing the alleged co-conspirators). It was also said at one stage that the first respondent. if the matter were to qo back to him. may not regard himself as disqualified. IT must sav that I find this attitude of the prosecution quite deplorable. The defendants are entitled to know where thev stand, in particular what is to be alleged against them. where and when. Thev have been the subject of charges which have been pressed for over six years, with the result, so far. that the major charge has been abandoned, and the lesser charges have ended inconclusively. The conduct which resulted in the committal orders being set aside has been known to the informants for over three years, and was not disclosed until very recently. The attitude of the prosecution seems to be one that their conduct can be as oppresive as they wish, but in this they are mistaken. This Court has ample power to interfere. and if necessarv, to restrain further proceedings. These reasons not having been delivered when the matters were mentioned in court on 26 June. I should add that on that date I made it plain that none of the orders intimated were to be ' regarded as formally made at this stage. dn em ee ee ee I certify that thiad ond the six (6) PPECOdIsAS Tones aro uw v.18 cory of the *_OROER hover OL Ls Lomour H Associate a -Feledt 3B July /98S- i ae IN_THE FEDEPAL COUPT Of SITSTPALIA NEW SOUTH NALES DISTRICT PECISTPY GENERAL DIVISTON TDGE: DATE OF ORDEP: WHERE MADE: No, C16 sf 1993 No. G396 of 1984 Ws F410 cf 1984+ Jo. Giol of 1995 NICHOLAS CASSIMATIS TOHN NICHOLAS CASTANOS N oF] im ke] TICE FAYM Spplicants OND BROWN ANT: Tia, HAYNES EETEF iAMB 3, WELLS 2.3.FOSTER REACONE FOP ORDER 5 June 1985 Svdrev When I delivered mv reasons on the as? D rey3 a is] 1b ue le) fe) =] M2. m+ an question of dental if sete elke fe eee ar we Pr en . a, _ oe . = . ee en - - . = - ab Fo re ne a ne a es A en LL . Tw bom ts ob i)w aT ct 'D x ay) natural dustice, I stood over until & Tune (a) the question of costs. (b) s@attlina of the form of other orders to be made. (c) directions as ta the hearing or ar issue outstanding, namelv whether 1t was open to the Magistrate bearing in mind the terms of s.41A of the Justices Act, 1902 to make an order discharging the present applicants when the informants told the Magistrate that they did net intend to proceed with the information alleqing the qeneral censpiracv, and ta make an order for casts in their favour, remains a Live 1ssue. After hearing submissions, I have concluded that an oeder should be made in each case that the committal order be sat aside. that the informant in each case pay the applicant's costs of the proceedings before me, limited in the case of Dr. Castanos so.)6fhe employment+ of one counsel and that the hearina of the outstanding issue be fixed for an early date. I decided that I should refuse an application on behalf of Dr. Castanos to add a around to his application to deal with the oustanding issue. The proceedings by the latter thereupon terminated. I excused counsel for the Magistrate from further attendance. ——— a mene erp err on ee ene . sof . a7 bears . nen ~.) a te tere . . \ t } ! ae eee Ba cao ye err rer mn = 8 er emer ee RNS TN TE OY "ON ase 2 He pre WS Le ape Lal 2 Ee 1a In relation t2 costs 1t was submittet on behalf of Khe informants (respondents before me) that thev should be required ko pay only one set of costs. There were however four separate defendants {applicants before me) and each_was..-antitled to eresent his case. Althouch counsel for the informants did not arque against the substance of what was cut in relation to denial of natural justice. this attitude was anly announced during the course of che proceedings, no cencessior was made on behalf of the informants. and discretionary rounds had to be addressed. In addition. there was the background consideration that the prosecution knew, at thé time, of the Macistrate's transareesion, No order as to his costs was soucht. The applicants submitted that T& should make orders discharging them from the general conspiracy charge and the lesser separate conspiracy charaqes. The Maaqistcate mad2 his erder discharging the other defendants after 18 May 1982. and, of course, had committed the vemaininag defendants on the other charges. ~ Tt was not arqued on this occasion, as it had nor on earlier occasions, that the canduct 1n question of the Magistrate should be regarded as divorced from, oar not connected ro, the decisions reached thereafter. Particularly as knowledae of the gelevant conduct was deliberarelv witnheld from the defendants. the effect, 1b was acceoted, carried to decisions such as that to charae the present applicants with the Lesser conspiracies. The ety ee "4 wet ete ty ve ~~ . ~ wet oe ey -46 tee oe "s aeer eo ge wee se . a eo oe — ~— nen te een ee ene or : are eee ae m ane we sew Pees rp ne ' ewer mt - a TN te , ~ ln ee eee ee Lk - - ---f discharge of the defendants other than the present applicants was however the result of a statement bv the prosecution that it was not proceeding with the general conspiracy charge. and the Maqistrate's orders for discharqe were not the result of any qudament, or dascretion, on his part. He had taken a deiiberate enurse to achieve that end. but there was the intervenind independent decision of the prosecution. The discharae af the dqefendarte 'applicants). in relation to the general consolracy, or the lesser ccnsoiracies. does not necessarily follow from the setting asiae of the committal orders. The primary unformation is s3t111 on fook, sa py Lt) far as concerns the applicants. The matter o2f discharge is, hay 1t seems to me, one for the Local Court. Tt is accepted that the a a O ct ' first respondent cannot proceed with the matter (ax Ds po] Oo possibly, with the consent of all parties, which is forthcoming). How the Court should act. and what 1t should do 1s The other principle submission was that IT should make orders as to casts, in relation tea the proceedings hefore the Magistrate. In this connection, it shauld be mentioned that after the general conspiracy charge was dropped the Crown, actiune an behalf of the prosecution. agreed to pay the discharzed defendants an amount for their costs. The present applicants wy or Dv 1D ™ uo D a T sy bat) a Foy i were not discharqed and the Macistrate tao enuld not in that circumstance make anv order for costs in their Ter ak mee 8 ey eee NEN A TIE tt ee em et Ne ee ee : — ~ 3 7 - ta aot . ' aye z ' . ns . > . ° fans ee an en re, favour. The situation in this reaard is, as IT have said, still a live issue. The requested orders for costs were in two pares, one for the period up to 18 Mav and che other for the subsequent period, until committal. As I indicated in the coucse of this last hearing before me. it does not seem to ma tnat I can make any orders ain this reaard. The orders that should he made, or should have been made. are matters for the Magistrate hearing the matter, assumina. that is. that some order should be made in favour of the applacants. I am in no position to wadge the amount to be fixed. or toa evaluate all the circumstances which should be taken into account in fixing 1t. The fact that the committal orders are set aside 'and other decisions after 19 Mav. so far as they involved the exercise of tudgment or dzecretion relative toa the charaes, must also fall) does not necessarily mean that the defendants hecame entitled to all. or any particular part, of rhe1g costs. The Registrar of this Court could not of asked to Us) tax the costs. A"magistrate makina an order for costs determine . an amount himself. Senior counsel for the prosecutors, who appeared in the place of Mr. Tembv, informed me that the latter, as Director of Public Prosecutions. had not vet taken aver the matters under $.9(5) of the Director of Public Prosecution Ach. I asked coungel rl how he say the steps now to be taker in the progecuticn case, did this for a number of reasons. I wanted te know the realitv > 0 oat ee ee Tost . ~ . ' * Regen < NRRL OO Re TR RN TE RE Te a PR RN EY A AE ee we ee Le ~ "ee - we ayer ' " 3 a Meare i ee ee . . eae Dm ae af the current situation, araument on both sides having diz=cussed different possibilities; I was concerned about injustice in relation to costs. and otherwise. and I wanted to see whether the oupstanding assue was really one requiring to be dealt with. Wnfortunately, counsel's instructions did not enable him to aive anv meaningful assistance. The possibilities mentioned included reliance on the general canspiracy as aaqainst the Tv i D o en Uv fan D Q Te applicants (possibly withouk re-charaing the ca-conspirators). It was also said at one stace that the first respondent. if the matter were to go back to him, may not regard himself as disqualified. utl el I must sav that f find this attitude of the pro uw i) iP) a) vw Dp B 'g quite deplorable. The defendants are antitled to know where stand. 1n particular what 15 to be allewed aaqainst them. where s and when, Thev have been the subtect of charaes which have heen Tw pressed for over six vears, with the result, so far. that the mafor charge has been abandoned, and the lesser charges have ended inconclusivelv. The conduct which resulted in the committal orders being set aside has been known to the informants for over three vears, and was not disclosed until very recently'. The attitude of the prosecution seems to be one that their conduct can be as oppresive as they wish, but in this they are mistaken. This Court has ample power to interfere, and if necessary, to restrain further oroceedings. A on Peet oy wees be ° i - -y ~- - "ec - - - . » oft - ce oo. . Ne - - - FSR re. ae en ce Ts ~ ~ ae ln Ee ale FR he mee wwe -- - - - - ee alee were mentioned in court on 26 June. IT should add that on that date I. made 1 plain that none of the orders intimated vere to be reaarded as formallv made at this staqe. I certiary www thes 227 3 Six - ( Lig 3 sooo Fart ° ~e@RseER oe Vs oe. oe - wee eh eae Ot 0 Bla tae —- "Me f0vissa * wwe 3 Tolg lore we RS eee perenne mm — . . pp nn