Saunders, B. & Anor v Brown, S.E. & Anor [1986] FCA 412

Ale

&

IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY +') NO. VG312 of 1986 GENERAL DIVISION )

BETWEEN: BARRY SAUNDERS and GERARD FRANCIS SHEEHAN

Applicants

AND: S.E. BROWN and PHILLIP GEORGE CURRIE

Respondents i CORAM: Jenkinson J. ; pee PLACE: Melbourne \ _ we ara oun DATE: 8 September, 1986 ' "

REASONS FOR JUDGMENT

Motion for a stay of proceedings under decisions which

are the subjects of applications under the Administrative

Decisions (Judicial Review) Act 1977.

On 7 March 1985, the second named respondent, Phillip George Currie, who was a member of the Australian Federal Police, and whom I shall call the informant, charged each applicant with the commission of two indictable offences against the laws of the Commonwealth : that he conspired with the other applicant and other persons to defraud the Commonwealth, contrary to s.86(1)(e) of the Crimes Act 1914; and that he conspired with the other

applicant and other persons to prevent or defeat the execution or

enforcement of the Income Tax Assessment Act 1936, contrary to

2.

3.86(1)(b) of the Crimes Act 1914. On 12 May 1986, the first named respondent commenced, as a stipendiary magistrate, to

conduct the preliminary examination in respect of those charges for which Division 1 of Part X of the Judiciary Act 1903 and Part V of the Magistrates (Summary Proceedings) Act 1975 make provision. The evidence for the prosecution concluded after the examination had proceeded on 23 days, of which 9 were occupied by the opening of the informant's case by his counsel. The learned magistrate thereupon, on 21 July 1986, formed and expressed the

opinion specified in s.56(1)(b) of the Magistrates (Summary Proceedings) Act 1975 that the evidence was sufficient to put each

applicant upon his trial for each of the indictable offences with which he was charged and that the evidence given for the prosecution raised a strong or probable presumption of the guilt of each applicant in respect of those charges. Being of that opinion, the learned magistrate complied with the requirement of s.56(1)(b) of that Act, that in that event she say to each applicant the words of caution therein set out. The preliminary