O'BRIEN v GILLIES & ANOR

Supreme Court of the Northern Territory of Australia Martin J,

EVIDENCE - Admissibility - Distinction between admissibility and exclusion by exercise of discretion - Whether warranted for a Justice to enquire into evidence which may be excluded on a discretionary basis by trial Judge - Justices Act (NSW) s. 41(6)

JUSTICES - Comiuittal proceedings - Interruption - Special circumstances

JUSTICES	Discretion to exclude voluntary inculpatory aamissions - Distinction between a Justice in committal proceedings and in the Court of Summary Jurisdiction - Justices Act Part V s. 106, 109(1), 121A, 121B, 125, 126

Cases applied:
Egan v Bott (1955) VR 787 Cases distinguished:
R v Iorlano (1983) 151 CLR 678
Cases referred to:
Carlin v Thawat Chidkhunthod (1985) 4 NSWLR 182
Clayton v Ralphs and Manos (1987) 45 SASR 347
Cleland v The Queen (1982) 151 CLR 1
Duke v The Queen (1988) 83 ALR 650
Grassby v R (1989) 87 ALR 618
Lamb v Moss (1983) 49 ALR 533
R v Ireland (1970) 126 CLR 321
R v Lee (1950) 82 CLR 133

Counsel for the plaintiff Solicitors for the plaintiff
Counsel for the 1st defendant Solicitors for the 2nd defendant

Counsel for the 2nd defendant Solicitors for the 2nd defendant

mar900033
Local distribution

TI	Pauling QC/ P Boyce
Solicitors for the NT

GM	Roussos Cridlands

DJ	Ross QC NTLAC

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mar900033

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No. 548 of 1990

BETWEEN:

PATRICK JOHN O'BRIEN
Plaintiff

JOHN ANTHONY GTLLIES
First Defendant

COR.1'11:	1/,.ARTIN J.

AND:
ROBERT JAMES SHERWOOD
Second defendant

REASONS FOR JUDGMENT
(Delivered 5 December 1990)

On 21 September I made a declaration in the following terms:

"That a magistrate (or justice) conducting a preliminary examination under Part V of the Justices Act in respect of indictable offences has no discretion to exclude voluntary inculpatory admissions, solely on the grounds that to admit them would be unfair to the defendant or not being unfair to the defendant, that public policy arising

out of proved illegality or impropriety required its exclusion".

These are the reasons which I then undertook to provide later.

On 5 September 1990 the first defendant, a Justice and Stipendiary Magistrate, was hearing evidence in committal proceedings upon information brought by the plaintiff concerning the second defendant.	The bulk of the charges concerned allegations that the second defendant had unlawfully entered a munber of dwelling houses with intent to commit a crime therein, namely, to steal and of stealing. As it	was alleged that some  of the offences  involved unlawful entry into a dwelling house at night they could not be dealt with summarily even with the consent of the accused (see sections 121A and 121B Justices Act).	The Justice coITL"'enced the preliminary examination (s. 106).	When all of the evidence offered upon the part of the prosecution upon a preliminary examination has been taken, the Justice is to consider whether it is sufficient to put the defendant upon his trial for any indictable offence (s. 109(1)).		Although the transcript of the proceedings was not available for examination in this Court, it appears from affidavits that as the committal hearing progressed counsel for the second defendant sought and was granted an opportunity to have evidence taken on a voir dire, during the course of which

questions were directed to not only challenging the admissibility of confessional material on the basis that it was not voluntary, but also on the basis that it was 11nfair, illegally obtained or otherwise liable to be excluded in the exercise of discretion.	As to the exclusion of confessional evidence where the prosecution fails to discharge the burden of proving that it was obtained voluntarily, the Justice takes the view that it is simply inadmissible and there was no argument before me as to that issue.	In his affidavit the first defendant said "My ruling was that I have a discretion to exclude confessional material in the exercise of a Lee discretion and a Cleland discretion on a voir dire during a committal proceeding".	By arrangement the continuation of the hearing was adjourned so that the plaintiff could seek to have the ruling reviewed in this Court.	That was done promptly and the second defendant, being in custody, arrangements were made for the matter to be brought on for hearing at the earliest possible opportunity.

I should deal at once with the submission made by counsel for the second defendant that the relief sought should be refused in the exercise of discretion upon the grounds that it was highly undesirable "to interrupt the ordinary course of criminal proceedings by applications for leave to appeal or prerogative relief for the purpose of challenging rulings on the questions of admissibility of

evidence" (R v Iorlano (1983) 151 CLR 678 at 680).	That case is distinguishable from this in that it concerned an application by the Crown for prerogative relief and for special leave to appeal arising from a ruling made by the trial judge that it would be unfair to permit the Crown to use certain evidence, and that public policy required it to be excluded.	Here the concern is with the conduct of committal proceedings, and it could be said that the ruling to which objection was made was not a ruling in the ordinary course of the conduct of such proceedings.		Furthermore, there is no authority on the point in this Court and the question resolved by the declaration is one cf significant importance in the proper administration of the criminal justice system in the Northern Territory.	Nothing I have said is to be taken as encouraging the interruption of the ordinary course of committal proceedings unless special circumstances can be shown.	That committal proceedings  are in principle amendable to judicial review, including by way of proceedings for declaration, seems no longer to be doubted, see generally Lamb v Moss (1983) 49 ALR 533 at pages 542 - 546 and Clayton v Ralphs and Manos (1987) 45 SASR 347.	The occasion for the exercise of that jurisdiction may be rare.	In this case it might be noted that it is not a ruling as to admissibility of evidence which is sought to be challenged, but rather the clear indication by the learned Magistrate that he proposed to embark upon a particular course of enquiry upon the voir

dire which may have led to his excluding admissions upon discretionary grounds (as to which see for example Ireland (1970) 126 CLR 321, Lee (l.950) 82 CLR 133, Cleland (1982)
151 CLR land more recently Duke (1988) 83 ALR 650 and Vandermeer (1988) 62 ALJR 656).

The provisions of s. 109 of the Act have stood in their present form since 1974 and their history can be traced back to that of the equivalent legislation of the State of South Australia.	The currents. 109 of the South Australian Act is not identical with that now operating in the Territory, but for the purposes of this case the differences are immaterial.		If the Justice is of the opinion that the evidence is sufficient to put the defendant upon his trial and if the charge is one of a minor indictable offence he may proceed in the manner directed and under the provisions contained in Division 2 of Part V of the Act, or, with certain immaterial exceptions, may ask the defendant whether he wishes to plead to the charge or proceed with the examination as provided in the remainder of Division 1.	Assuming that the examination proceeds, the Act enables the defendant and witnesses he may call to give evidence.	When the examination is completed in that case the Justice is to consider whether the evidence is sufficient to put the defendant upon his trial for any indictable offence, and if he is of that opinion then he is to direct the defendant to be tried and commit him to gaol

or grant him bail.	The future conduct of the matter then falls within the jurisdiction of this Court.

On the other hand if the matter proceeds under Division 2, that is, where the person is charged with a minor indictable offence, the matter may be dealt with by Justices or a Magistrate summarily.		The charge having been reduced to writing and the defendant having pleaded (s. 125) the Justices or Magistrate become a Court of Summary Jurisdiction within the meaning of the Justices Act and, subject to the Act, the procedure and powers of the Court shall be the same, and the provisions of the Act shall apply, as if the charge were a complaint for a simple offence under the Act (s. 125(2)).	To enable the case for the prosecution to be fairly dealt with by the defendant the evidence of any witness need not be taken again, but the witness shall, if the defendant so requires, be recalled for the purposes of cross-examination (s. 126) and the prosecutor is to be afforded an opportunity to cause any person who made a statement admitted under s. 105B upon the committal to attend before the Court to give evidence and to be cross-examined.	I mention the procedures under Division
2 of Part V to emphasise a distinction between a Justice or
Magistrate sitting in committal proceedings, and in the Court of Summary Jurisdiction exercising the respective powers and functions applicable to each, and to show that a person charged is not prejudiced should the matter commence

by way of committal  and  proceed under that Division.	Such a person will be at no disadvantage upon his trial before the Court of Su.mrnary Jurisdiction when compared with the situation had he or she been charged with a simple offence.   In that regard the	Court of Summary Jurisdiction  is possessed of, and must exercise, the same powers and discretions as a Judge presiding over a jury trial
{Ecran v Bott (1985) VR 787).

Returning, however, to the proceedings upon which the Justice was embarked when the issue here in question arose, it is first necessary I think to pay regard to the word "evidence" ins. 109.	It is the evidence which is the foundation for the Justice's consideration or to whether the defendant should be put upon his trial for any indictable offence.	The evidence must be evidence which would be admissible upon the trial and, in that regard, as Olsson J. observes in Clayton v Ralphs and Manos (1987) 45 SASR 347 at
409 "(A) clear distinction must be made between the question of admissibility on the one hand ......	and the very different issue of the exercise of discretion by a trial Judge as to whether evidence, otherwise admissible, ought nevertheless to be excluded on the ground that its prejudicial effect is disproportionate to its true evidential value or on general grounds of unfairness".	In my opinion the distinction is plain, as his Honour points out, and it is one which ought to be observed.	It is no

..
part of the function of a Justice upon a committal hearing to reject admissible evidence because of some such unfairness or irregularity.	Reference might also be made to the reasons of his Honour Justice Jacobs at p. 358 (I am not here concerned with the differences which appear to have emerged in respect of the view expressed bv O'Brien CJ, in Carlin v Thawat Chidkhunthod (1985) 4 NSWLR 182 concerning the power in a committing Magistrate to reject evidence going to admissibility as opposed to the exclusion of evidence in the exercise of a discretion).	In considering the evidence for the purposes of his or her function a Justice in committal proceedings must consider the admissible evidence, but there is no statutory or other warrant for a Justice acting in that capacity to 11ndertake an enquiry in relation to evidence which it is suggested might be excluded on a discretionary basis by the trial Judge so that he can consider excluding it.

For a general background as to the nature of a preliminary examination or committal proceedings and the powers of a Justice or Magistrate conducting such proceedings see the judgment of Dawson J. in Grassby v R (1989) 87 ALR 618 commencing at 621.	The Chief Justice and Justices Brennan and Toohey were in general agreement with his Honour as was Deane J., but he expressed that agreement subject to one qualification.	His Honour's remarks, which are supportive of the case for the defendants here, at p.

.

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620 conclude". .. a Magistrate cannot intelligibly address the question of whether a jury would not be likely to
convict without deciding, to the best of his or her ability and on the material before him or her, what the evidence before the jury would be".	In that respect he had previously said that the requirement that the Magistrate have regard to all the evidence does not require the Magistrate to disregard the question whether some or all of that evidence would be either ruled inadmissible or excluded on discretionary grounds upon a trial.	Those remarks were made in the context of consideration of s. 41(6) of the Justices Act New South Wales which require the Justice, after considering all the evidence, to consider whether, having regard to all the evidence, "a jury would not be likely to convict a defendant of an indictable offence", if so satisfied then the defendant is to be discharged, but if the Justice is not of that opinion then he is to commit the defendant for trial.		As to that Deane J. asserted that "the resolution of that question will necessarily involve, in many cases, an assessment of the likely rulings which would be made by a trial judge (if a committal order were made) about whether that particular evidence is admissible or should be received".		The question which a Justice must ask in this jurisdiction, when all the evidence offered upon the part of the prosecution has been taken, is whether it is sufficient to put the defendant upon his trial for any indictable offence.	I do not think there is any material

difference between the test here and the test in New South Wales for these purposes but, with respect, I prefer the views expressed by their Honours Jacobs and Olsson to that expressed by his Honour Justice Deane in the High Court.

The plaintiff submitted that if a Magistrate concludes on a particular piece of Crown evidence that (a) no Judge would admit the evidence; or (b) that every Judge would exclude the evidence, then it would be wrong for him to allow such piece of evidence to form part of his decision to commit or not.	If no Judge would admit that particular piece of evidence then it would be inadmissible and a Justice sitting in committal proceedings may only receive the evidence which is admissible in accordance with the laws of evidence (including under s. 105B of the	).	The proposition that a case could arise where a Justice could conclude that every Judge would exclude the particular piece
of evidence, in the exercise of discretion, seems to me to set a standard which would be impossible for a Justice
\	sitting in committal proceedings to find satisfied.	Not
only because the question of exclusion of otherwise admissible evidence is based upon a discretion, but because that discretion must be exercised in the light of the evidence accepted by the trial Judge upon a voir dire conducted within the trial.

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