JUDGMENT No 7oS/ 8. CATCHWORDS Administrative Law ~ Order for Review - ss. 5, 6 and 16 of Administrative Decisions (Judicial Review) Act - whether evidence wrongly admitted of witnesses' understanding that "Buddha" meant "Cannabis" - whether prima facie case existed without that evidence - whether s. 41(6) of . Justices Act (N.S.W.) complied with - Remission to Magistrate to hear and consider submissions under s. 41(6). G256 of 1987 GRAHAM BESEY v. F. MACKENZIE & ORS. M. L. FOSTER, J. SYDNEY 27 NOVEMBER, 1987. [ | soe —_— Fp ZUCRM TD \ \ \ 'FEDERAL COURT Or é /} AUSTRALIA £ . PRINCIPAL >, REGISTRY ? ey IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G256 of 1987 GENERAL DIVISION BETWEEN: GRAHAM BESEY Applicant AND: F. MACKENZIE First Respondent B.R. BENNETT Second Respondent M.W. STANDON Third Respondent DIRECTOR OF PUBLIC PROSECUTIONS Fourth Respondent MINUTES OF ORDER CORAM: FOSTER, J. DATE: 27 NOVEMBER, 1987 AT SYDNEY. ORDERS: 1. I quash the order of the first respondent committing the applicant for trial. 2. I rvefer the matter to the first respondent for further consideration. 3. I direct that such consideration shall relate only to issues raised under s. 41(6) of the Justices Act, 1902 (N.S.W.) and that he shall receive and consider submissions as to those issues before considering afresh the question of whether the applicant should be committed for trial. 4. Each party bear its own costs. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G256 of 1987 GENERAL DIVISION BETWEEN: GRAHAM BESEY Applicant AND: F. MACKENZIE First Respondent B.R. BENNETT Second Respondent M.W. STANDON Third Respondent DIRECTOR OF PUBLIC PROSECUTIONS Fourth Respondent CORAM: FOSTER, J. DATE: 27 NOVEMBER, 1987. REASONS FOR JUDGMENT HIS HONOUR: I have before me applications for orders of review pursuant to sections 5, 6 and 16 of the Administrative Decisions (Judicial Review) Act ("the Act"). The applicant, Graham Besey, was on 29 May, 1987 committed for trial by the first respondent at the Local Court, Castlereagh Street, Sydney pursuant to s. 41 of the Justices Act, 1902 (N.S.W.). He of in of was the the the committed for trial on two charges of conspiracy. The second and third respondents are officers Australian Federal Police, who were the informants proceedings. The fourth respondent had the conduct prosecution. The applicant was charged with the following offences:- (a) (b) A charge of conspiracy to import cannabis contrary to s. 86 (1A) of the Crimes Act, Cth, and s. 233B(1)(b) of the Customs Act, 1901, Cth, in the following terms: "That Graham Gerald Besey between 1 January, 1975 and 31 December, 1975 at Sydney and elsewhere in the State of New South Wales did conspire with Machael Moylan and divers other persons to commit an offence against the law of the Commonwealth, that is to say, to import into Australia a prohibited import, to which at all Material times, s. 233{B) of the Customs Act applied, to wit, a quantity of cannabis in contravention of the provisions of s. 233B(1)(b) of the said Act." A charge of common law conspiracy to commit an act contrary to s. 21(1)(A) and s. 45(A) ef the Poisons Act, 1966, (N.S.W.}) an the following terms:- "That Graham Gerald Besey, also known as Graham Vesey, between about 1 August, 1975 and about 30 September, 1975, at Sydney in the State of New South Wales and elsewhere, did conspire with Michael Moylan and divers other persons, to supply Indian Hemp." 2. Committal proceedings in respect of these charges were heard by the first respondent on 25, 26, 27, 28 and 29 May, 1987, the applicant being committed for trial on the last of these days in respect of both charges. The applicant claims in these proceedings as a person aggrieved within the meaning of s. 5 of the Act by the decision of the first respondent to commit him for trial and pursuant to s. 6 of the Act by certain conduct of the first respondent in the proceedings. He further claims that the second, third and fourth respondents are in breach of the rules of natural justice in commencing and continuing a prosecution against him for offences alleged to have been committed in 1975. It is convenient first to consider the complaints in respect of the first respondent's conduct. These are set out ain paragraph 4(i) of the Application, which reads as follows:- "The first respondent erroneously admitted into evidence and then gave weight and/or undue weight to statements of a witness relating to the identity of material alleged to be the subject matter of the conspiracies." These complaints relate to the admission into evidence over objection of certain testimony of a witness, Peat, allegedly a co-conspirator with the applicant, in which he was permitted to attribute to the words "dope", "cannabis", "Buddha" and "Buddha grass" the meaning of that being the word in the first charge, the substance referred to being, of course, a narcotic drug and a prohibited import under the Customs Act. It is convenient to set out the whole of the evidence relating to these matters as it must also be considered in relation to a further submission of the applicant that the first respondent had before him no evidence that the substance allegedly the subject of the conspiracies to import into Australia and to supply was cannabis or Indian hemp within the meaning of the relevant statutes. The evidence appears at various places and all relates to an alleged conversation between the witness, Peat, and another alleged co-conspirator, one Mick Moylan, in a coffee shop aun Orchard Road, Singapore. The first passage appears on pages 16 and 17 of the first day of the evidence before the first respondent. It reads as follows:- "Q. Did you keep the next appointment with Mick? A. Yes. Q. Where was that? A. In the same place, the coffee shop in Owen Road, Orchard Road. Q. Who arrived first? A. I arrived first." Questions then followed as to the witness observing the man Mick arrive. The evidence then proceeded:- "Q. And did he speak to you? A. He sat down and we were talking again and I think he said at that point, he hadn't been able to contact his friend, and then I said, then at that meeting I think. Q. I beg your pardon? A. Sorry, I said at that point, I think, that I said, Sorry, at that point I said to him, "I hope there is something that I can do for your 4. friend." Because by now this friend had become somebody, I suppose, in the sense that 1t had been mentioned a couple of times. Did he say anything to that? He said, "Yes, there certainly will be.". "Don't worry there will be something that you can do.". And that's when my whole course of thinking, I suppose, altered." There was an objection. "Oo. Do not tell us what you were thinking just tell us what you said at that stage in the conversation? I said to him, "Is it dope?". And he said, "Yes.". And he said, "It's dope" and I took that to be ..". There was an objection. Q. Do not tell us what you took it to be. Did he say anything in addition to that? In addition to saying, "Is it dope.". He said, "Yes, it is.". He looked at me for some sort of reaction. He was waiting for an answer from me and I said, "That's cool, I can handle it." At page 20 of the first day of the evidence the following passages appear. "9. Objection was "oO. Just going back, Mr. Peat, you said that you on the second occasion on which you met with Mick, I withdraw that. The third occasion on which you met with Mick? Yes. You said to him, "Is it dope?"? Yes. Do you remember that? Yes. What did you mean by that expression?" taken, but the question was allowed. Do you remember the question? 5. A, Yes. Q. Would you answer it? A. A form of Buddha grass." He then repeated that name. The question was asked:- "And what was that answer?" And he said: "Yes.". Some argument then followed as to the course of the questioning. The question was then asked: "What did you mean by dope?" And the answer was given:- "Buddha grass. Q. And what is that?" This was objected to. It was allowed. The question was asked:- "Q. That is the question, Mr. Peat? A. What is Buddha grass? Q. Yes. A. It is cannabis." Objection was taken to the question and answer on the basis that:- "The witness has got no qualification whatsoever to give that answer and no basis has been laid. And the ruling was given that no basis was necessary. It was a question of weight and not of admissibility. 6. At page 23 on the first day of the evidence questions were asked in relation to the same conversation as follows:- "Q. Mr. Peat, would you like to now give the conversation about the particular occasion of the? A. We sat down and he said that he hadn't been able to contact his friend. On this occasion he said he had still not been able to contact his friend and by that time I said to him, "I hope there is something I can do for your friend." He in answer to that said, "Yes, there is, there will be something you can do." And then I said, "Is it drugs?". And he said, "Yes, dope.". And I took that to mean Buddha grass." There was an objection. The witness said:- "And that is exactly how it was. Q. Well, do not tell us about what you took it to be, you just tell us about what the conversation --- A. Well, that's what registered in my mind, sir." There was another objection. The witness then said:- "Then he looked at me for some sort of reaction and said, "That's cool. I can handle it." This conversation was again referred to in the evidence on the secondday at pages 24 and 25:- "9. Well now you decided, did you, when in Singapore seeing this man Mick, that you would accept his assistance? A. Yes. Q. When did you make that decision? A. To accept his assistance when I got the feeling that he had something illegal in mind, and it was an instinctive feeling. Q. When was that? 7. On one of the meetings in Singapore when I said, "I hope there 1s something I can do for your friend". And when he said, "There certainly, or there is". And I said, he said, "It 1s Buddha". And I said --- He said what? "It as Buddha". He said, "It 1s Buddha"? Yes. He was then questioned in relation to what he had said on the previous day about this conversation and at page 25 the following questions and answers were given: "oO. A. You did not give us that order of conversation did you? No, I actually said yesterday that I said "Buddha", where in fact 1t was not, it was the other way around. What you got a bit mixed up did you? Yes I did. You remember stating to us yesterday it was you who said "It was Buddha"? Yes I do remember saying that. To him? Yes. And what did he say? I can't remember what I said yesterday exactly. What did he say at the time when you said, "It was Buddha"? When, no, I did say that yesterday, and I correct myself on that. He said, when I said, "Is there something I can do for your friend?" He said, "There is". And I said, "Is it dope?" And he said, "Buddha". And then he looked at me for reaction, and I said, "That is cool, I can handle it.". 8. This conversational material is again adverted to at page 37 of the second day:- "Q. When the word "dope" was used, do you remember, do you remember the word "dope" being used? A. Yes. Q. Just tell us who said what would you? A. Mick Moylan said, "There's Buddha" I said, "Dope you mean?" I don't know whether I said "you mean". Q. That was the whole of the conversation? A. No. The rest of the conversation was --- Q. On the subject of dope? Anything else said? A. Yes, he looked at me for a reaction, and I said that I can handle it. He said, "Are you sure, or do you want to think about it?" I said, "No that's cool" and he said, "Well think about it"." At page 38 he indicated that he could not remember whether he said "dope" or "drugs", but he averred that the man Moylan had said "Buddha". There was further conversation relating to the inconsistency of his testimony at that point of time with his testimony on the same topic on a previous day. I do not find it necessary to set out in full questions and answers relating to that further cross-examination. It appears at pages 38 and 39 of the transcript. I return to the applicant's complaint in paragraph 4(1) of the Application. No attempt was made in argument to support the complaint so far as it related to the attribution of weight and/or undue weight to the admitted material. Indeed it must be extremely doubtful whether such a question could be cognisable under s. 5 or 6 of the Act. It was argued, however, that the objection to the question seeking that the witness Peat give his understanding of the meaning of the word "dope" and "Buddha", "grass and Buddha" should have been upheld. Had this occurred, there would have been no evidence in the case identifying in terms a substance to be imported as cannabis. I am of the view that the question should have been rejected. The evidence of the conversation was admissible against the applicant only on the basis that it occurred in furtherance of a common purpose of a conspiracy to which he was a party. It went to the nature of the unlawful agreement constituting that conspiracy and as such was clearly admissible. However, in accordance with principle the construction of the agreement could be approached only on the basis of an objective consideration of the word used in the conversation. Evidence of the meaning subjectively attributed by one of the participants to certain words used in that conversation was in my view clearly irrelevant and should not have been admitted. An attempt was made to support the admission of the evidence on the basis it was in the nature of opinion evidence as to the meaning of technical terms or terms which had a special meaning by 10. dint of usage by a particular class of person. It was put that the evidence qualified the witness Peat to express such an opinion. I am satisfied that the evidence falls far short of establashing any such qualification on the part of Peat. Moreover, no attempt was made to qualify him and the question asked was not one apt to adduce opinion evidence. Additionally, the learned Magistrate ruled, as is to be seen in the passage cited, that the evidence was admissible without the need of any qualification of the witness; it was a matter of weight, not admissibility. It is clear that the Act applies to a ruling as to the admissibility of evidence. It is either a "decision" (section 5) or "conduct for the purpose of making a decision" (section 6). Where the ruling is incorrect, a party affected can clearly apply for an order for review under s. 5(1)(£) or (3) or s. 6(1)(f£) or (45) (see Shepherd v. Griffiths & Anor., 60 A.L.R. 176). It 1S unnecessary in the present case to determine which 1s the appropriate section. I am satisfied, therefore, that the applicant is entitled to seek an order for review on the ground that this evidence was erroneously admitted. Whether relief should be granted, however, depends upon discretionary considerations (s. 16), to which I shall come later in these reasons. 11. Had this evidence not been admitted, there would have been no direct reference in the evidence to the substance "cannabis". The applicant therefore makes a claim in paragraph 4(i21i) of the Application:- "There was no admissible evidence before the first respondent as to the identity of the material alleged to form the subject matter of the alleged conspiracies and therefore there was no evidence capable of proving the existence of either of the alleged conspiracies." This claim amounts to the assertion that the learned Magistrate was in error in forming the opinion pursuant to s. 41(2)(b) of the Justices Act, 1902 (N.S.W.) that the evidence before him was "capable of satisfying a jury beyond reasonable doubt", that the defendant was guilty of charges into which he was enquiring. This claim 1s one that can be considered by this Court (Lamb v. Moss & Anor. 49 A.L.R. 533). It was submitted that, absent the evidence just considered, the learned Magistrate had before him no evidence capable of satisfying beyond a reasonable doubt a reasonable jury properly instructed (s. 41(8) of the Justices Act) that the substance allegedly the subject of the unlawful conspiracy was either"cannabis" (Customs Act, Cth) or "Indian hemp" (Poisons Act, N.S.W.). In considering this submission it is necessary to have regard only to evidence favouring the prosecution (Carlin v. Thawat Chidkhunthod & Anor. (1985) 4 N.S.W.L.R. 182 at 193). This must be done of course, in the context that there is not inconsiderable conflict in the testimony of the witness Peat in relation to the relevant conversation. 12. Putting the prosecution case at its highest, it would seem that reliance could be placed upon an inquiry from Peat to Moylan as to whether the substance to be carried was drugs or dope, with the answer returned that it was "Buddha". It 1s put that this could constitute no evidence for the prosecution that the subject matter of the umportation or supply respectively was to be "Cannabis" or "Indian hemp". I have been referred to the unreported decision of Regina v. Wasow, (Supreme Court of New South Wales, Court of Criminal Appeal, 27 June, 1985). In that case, the appellant had been convicted under the N.S.W. Poisons Act of supplying Indian hemp. The only evidence at the end of the Crown case as to the substance allegedly supplied was an admission on the part of the accused that it was "hash". At the conclusion of the Crown case after argument as to deficiency in proof as to the substance supplied being Indian Hemp, the Crown was allowed to re-open and call evidence, inter alia, as to Indian Hemp being referred to in common parlance as "Hash". The appeal turned upon the question whether the Crown should have been allowed to re-open and tender the additional evidence "irrespective of the question regarding the inadequacy of the case without the evidence." It is clearly not authority for any proposition that an unexplained slang description of a substance cannot provide evidence that the substance is an addictive drug also known by a technical name referred to in a Statute. 13. The question is whether a substance described as "dope", known also as "Buddha", in a context of evidence relating to an agreement to import it into Australia in a manner suggestive of an intention to conceal 1t in a most sophisticated way from the scrutiny of customs officers, and in a quantity which may be thought far to exceed requirements of private use, could reasonably be found by a jury to be Cannabis or Indian Hemp without the assistance of further explanatory evidence. It is a question whether these words taken together can be said to have achieved a sufficient currency in common parlance as signifying the narcotic technically referred to as "Cannabis" or "Indian Hemp", or whether they are not reasonably capable of bearing that meaning. If the latter is the position then clearly no prima facie case could be said to have been established as provided for in s. 41(2)(b) of the Justices Act. I have come to the conclusion that this is a question on which judicial minds could reasonably differ. Although I find myself inclined to the view that the evidence is inadequate, I am far from persuaded that there is clearly no prima facie case that the substance the subject of the agreement was "Cannabis" or "Indian Hemp". In the circumstances, I am not satisfied that any error of law in the application of s. 41(2)(b) has been demonstrated. 14. That being so, the fact that in my view evidence of the witness Peat's view that "Buddha" meant "Cannabis" was wrongly admitted is of no consequence. The remaining evidence 1s arguably capable of sustaining the meaning. In this respect then the applicant has not passed the threshold tests laid down in s. 5 and 6 of the Act. I should add that having regard to the requirement that "exceptional circumstances" must be shown before as a matter of discretion, this court should grant relief under s. 16 of the Act in respect of criminal committal proceedings properly brought in a State Court (Lamb v. Moss, op cit p. 545-564), I should have felt impelled to refuse relief in any event. The applicant sought to show "exceptional circumstances" by relying upon there being a clear and unarguable absence of a prima facie case. It was put that cases such as Bourke v. Hamilton (1977) 1 N.S.W.L.R. 470; and Gorman & Anor. v. Fitzpatrick & Anor. (1985) 4 N.S.W.L.R. 286, were authority for the proposition that such a state of affairs provided as it were an unarguable case for the exercise of discretion in favour of relief. I am not persuaded that this is so at least in relation to relief sought under the Act (see, for example, Seymour v. Attorney General for the Commonwealth & Ors. 53 A.L.R. 513, 57 A.L.R. 68). In any event, as I have indicated, I do not think there is any such clear absence of a prima facie case. 15. I turn then to consider the applicants additional claim for relief on the ground that the learned Magistrate did not comply with the requirements of s. 41(6) in has committal of the applicant for trial. A reading of the transcript of what transpired in the proceedings after the learned Magistrate had complied with the formalities required by s. 41(4) and (5), coupled with what I have been told from the bar table as to senior counsel's recollection of these events, satisfies me that the first respondent proceeded on a wrong principle in relation to the operation of s. 41(6). He was either of the view that s. 41(6) did not come into operation unless the defendant had given evidence or called witnesses pursuant to s. 41(5), or that once a magistrate had found the existence of a prima facie case under s. 41(2) there was in effect no rational basis upon which he could find that a jury "would not be likely to convict" the defendant (s. 41(6) (a)) if the defendant had not introduced some countervailing material into the case. Either view involves, in my opinion, an incorrect approach to the operation of s. 41(6). The approach that should be taken is set out comprehensively in the judgment of O'Brien, C.J. of Cr.D. in Carlan's Case (op cit) pages 197 et seq. Thus, at page 201, his Honour says:i- "The position where at the second stage of the proceedings the defendant declines to give evidence or call witnesses on his behalf provokes some further consideration. At that stage, the magistrate has formed the opinion that the evidence for the prosecution entitles a jury 16. lawfully to find the offence proved beyond reasonable doubt. But in doing so he has had regard in the case for the prosecution only to such of the direct evidence as is favourable to the prosecution and to such anferences available from the evidence as are similarly favourable. He has had no regard to evidence adduced in the case for the prosecution which 1s directly favourable to the accused or inferences which are similarly favourable since it 1s open to the jury to disbelieve the evidence and any inferences upon which the defendant may thereby rely. The second stage then requires that he consider "all the evidence for the prosecution and any evidence for the defence" and the opinion to be reached is one "having regard to all the evidence"." His Honour further says (at page 203):- "In these circumstances it is for the magistrate to consider the quality and acceptability of the evidence for the prosecution both with regard to the evidence and inferences favouring the prosecution and also to any of that evidence and any inferences therefrom which favour the defendant and to form his opinion according to the principles of law then applicable." These passages serve to indicate what is in any event, clear from the wording of the section that a very different test is to be applied by a Magistrate when considering the evidence before him under s. 41(6) from the test he has already applied under s. 41(2) when finding the existence of a prima facie case within the meaning of that sub-section. It is clear that the defendant, in committal proceedings, has a right to be heard in relation to issues arising under s. 41(6) and in exercising that right can put submissions different in kind from those which might be put in relation to s. 41(2). I am satisfied that the ruling given by the learned Magistrate in relation to the applicability of s. 41(6) in the present case has prevented the putting of submissions available to the applicants under that sub-section. The applicant has, 17. therefore, satisfied the threshold requirements of s. 5(1) {a)(b) and (f£) of the Act. The question still remains, of course, as to whether he has also made out a case for discretionary relief under s. 16 of the Act. "Exceptional circumstances" must be shown (Lamb v. Moss, op cit; Sankey v. Whitlam (1978) 142 C.L.R. 1). The committal has, in fact, occurred. It does not appear, indeed, that the first respondent was ever asked to stay his hand pending resolution of the question which had arisen as to the operation of s. 41(6). Nor does it appear that full argument based on authority was put to him as to the operation of the section. I have hesitated considerably over this aspect of the case. In particular, cases such as Seymour v. Attorney General for the Commonwealth & Ors. strongly suggest that in the events which have occurred relief with consequent delay of the criminal proceedings should not as a matter of discretion be granted. I have come finally to the conclusion, however, that the circumstances of this case warrant the granting of limited relief under s. 16 of the Act. The evidence relating to the subject matter of the importation comes from an alleged accomplice. That evidence itself is in a confused state. There is a question of what view a jury might ultimately take as to the significance of the word "Buddha" in the context of the case. There is undoubtedly room for a substantial and reasoned argument to be put to the first respondent as to whether he should form the opinion that "a jury would not be likely to convict" (s. 41(6)). This is certainly a live issue in this case. 18. If the learned Magistrate after hearing such argument, should come to this opinion then there would, in fact, be an ultimate saving of time and a reduction of delay in the administration of criminal justice. What I have said in this regard, of course, is 1n no way to be taken as pre-empting the learned Magistrate's decision under s. 41(6). That 1s one that he alone can make and he, of course, has the benefit of seeing and hearing the relevant witnesses. I consider then that the committal should be set aside but only for the limited purpose of the learned Magistrate hearing submission on the evidence as it stands on the issues raised by s. 41(6). A further submission on behalf of the applicants was noted but not expanded, namely, that relief should be granted on the basis of the lapse of time between the alleged commission of the offence in 1975 and the hearing. I entertain some doubt as to whether this is a matter that I can properly consider, it being a submission really based upon the alleged abuse of the process of another court. However, I need not concern myself with this as I am satisfied that the delay was substantially brought about by the deliberate actions of the applicant. In these circumstances, I would not, in any event, grant relief against the second, third and fourth respondents as claimed. 19. I therefore make the following orders:- 1. I quash the order of the first respondent committing the applicant for trial. 2. I refer the matter to the first respondent for further consideration. 3. I direct that such consideration shall relate only to issues raised under s. 41(6) of the Justices Act, 1902 (N.S.W.) and that he shall receive and consider submissions as to those issues before considering afresh the question of whether the applicant should be committed for trial. I consider that in this hearing, the applicant and the respondents have each been partly successful and unsuccessful in their submissions. In those circumstances, I consider that the appropriate order for costs is that each party should bear its own costs. RRRKRKEKEKRKKARHKKHREK T eertity that this and the \q preceding peges are a true copy of the reagona for judgment herein of His Honvur, Mr. Justioe dena B Tannery, (28S. 20. Applicant: First Respondent: Second, Third and Fourth Respondents: Hearing Dates: Date of Judgment: A. B. Shand, instructed by Messrs. Esq., APPEARANCES Q.C. and P. Roberts, Esq. Submitting Appearance. D. J. Fagan, Esq. Phillips Fox. instructed by Director of Public Prosecutions. 24 and 25 November, 27 November, 1987. 1987.