State v Rush; Application by Rush [1984] PGNC 17; [1984] PNGLR 124; N480(M) (4 April 1984)

N480(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

RUSH; EX PARTE RUSH

Waigani
McDermott J

4 April 1984

PREROGATIVE WRITS - Certiorari - Excess or want of jurisdiction - Committal proceedings - Order available.

INFERIOR COURTS - District Courts - Committal proceedings - Judicial review of - Excess or want of jurisdiction - Certiorari available - Non-compliance with mandatory requirements - District Courts Act 1963, s. 101.

Held

(1) Orders in the nature of certiorari to quash for excess or want of jurisdiction are available in respect of committal proceedings.
R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Company (1920) Ltd [1924] 1 K.B. 171 at 205, adopted and applied.

(2) Accordingly, in proceedings where a person was charged with an indictable offence that could not be tried summarily and there had been non-compliance with the mandatory time limitation on service of documents to be relied on in the proceedings as required by the District Courts Act 1963, s. 101, an order in the nature of certiorari should go to quash the committal.

Cases Cited

Connor v. Sankey and Ors [1976] 2 N.S.W.L.R. 570; (1976) 28 F.L.R. 267.
Cousens; Ex parte Blacket, Re [1946] NSWStRp 36; (1946) 47 S.R. (N.S.W.) 145.
R. v. Botting (1966) 56 D.L.R. (2d) 25 (C.A.).
R. v. Bullock [1964] 1 Q.B. 481.
R. v. Coleshaw Justices; Ex parte Davies [1971] 1 W.L.R. 1684.
R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Company (1920) Ltd and Ors [1924] 1 K.B. 171.
R. v. Epping and Harlow Justices; Ex parte Massaro [1973] 1 Q.B. 433.
R. v. Justices of Roscommon [1894] 2 I.R. 158.
R. v. Lewes Justices; Ex parte Secretary of State for Home Department [1973] A.C. 388.
R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1951] EWCA Civ 1; [1952] 1 K.B. 338.
R. v. Race Relations Board; Ex parte Selvarajan [1975] 1 W.L.R. 1686.
R. v. Schwarten; Ex parte Wildschut [1965] Qd R. 276.

Summons

This was an application made under the National Court Rules, O. 16, r. 1, for an order in the nature of certiorari to quash an order committing the applicant for trial.

Counsel

R. J. Webb and I. R. Shepherd, for the applicant/plaintiff.
E. Karike, for the respondent/defendant.

4 April 1984

MCDERMOTT J: Application was made under O. 16, r. 1, of the National Court Rules for an order in the nature of certiorari to quash an order of the Daru District Court of 19 December 1983 whereby the applicant was committed to stand his trial for an alleged offence against s. 398(a)(i) of the Criminal Code (Ch. No. 262). I was also asked to make certain prohibitive orders against the committing magistrate, however, these will not be necessary if the committal is quashed. On 11 April 1984, the committal was quashed and I now publish the reasons for that order.

A number of affidavits have been filed on behalf of the applicant and on behalf of the other interested parties represented by the Public Prosecutor. On 6 December 1983, an information was laid in the District Court alleging Allan Douglas Rush on 2 December 1983 broke, entered and stole cash from the office of the Western District Seafood Company Ltd. He was granted bail. The committal proceedings took place before Mr Madu Gami. It is clear to me that there was a misunderstanding about what was to happen at Daru on 19 December 1983. The accused wished to have the committal disposed of as quickly as possible. As this was to be a hand up brief type committal, the police officers concerned took the accused’s attitude to mean that certain time limitations set out in s. 101(3) and (4) of the District Courts Act 1963 would be waived.

The committal commenced and with the accused being represented, it became obvious that the time limits in which he was to be served with the affidavits containing the allegations and the affidavit of service of such upon him would not be waived. Nevertheless, the magistrate proceeded to commit the accused for trial after considering that the offending affidavits "were only ancillary information". Mr Kariko for the Public Prosecutor has quite correctly conceded, that once the magistrate became aware of the accused’s position, the hearing should then have been adjourned.

I was advised of the Public Prosecutor’s intention to proceed with the allegations against Mr Rush. Mr Webb was instructed to pursue this application to finality.

I mention this because an order will necessitate a new committal. This is not a case where the accused does not know the allegations against him. His lawyer was served with some of the affidavits on 5 December 1983 and with the remainder on 19 December and proof of service of these was filed in the District Court on that day.

Section 101, of the District Courts Act 1963 sets out the procedure to be followed where "a person is charged with an indictable offence that shall not be summarily tried". The requirements are mandatory.

In short, the prosecution must serve on the defendant all affidavits and other documentary evidence upon which it intends to rely within the period from fourteen days to three days before the date of the committal hearing. It must also lodge with the court affidavits of that service at least three days (seventy-two hours) before the date of hearing. It is possible for a magistrate to commit without consideration of the evidence (s. 101B) but this can only occur when a defendant has legal representation. The question of consideration of the evidence either under s. 101B(2)(b) when a submission of insufficiency of evidence is made or under s. 102 when not proceeding under s. 101B, does not arise but the matter of service does. Section 101B(1) is in the following terms:

"Subject to Subsection (2), (which is not applicable for present purposes), a court inquiring into an offence may, if it is satisfied that all the evidence, whether for the prosecution or the defence, consists of written statements tendered to the court after service in accordance with Section 101, with or without exhibits, commit the defendant for trial for the offence without consideration of the contents of the statements."

The court commits for trial under this section but if the procedure is under s. 102, the court comes to the "opinion that the evidence is sufficient to put the defendant upon his trial". Then by s. 107, "when the examination under this Division" (Proceedings in case of Indictable Offenses)is completed and the evidence is found sufficient, the court under subs. (3)(a):

"by warrant, commit(s) the defendant to a corrective institution, police lock up or other place of security or other such safe custody, to be there safely kept until the sittings of the National Court before which he is to be tried or until he is delivered by due course of law"

or until bail is granted. A committing magistrate falls within the definitions of "bail authority" and "court" contained in the Bail Act (Ch. No. 340).

The effective "order" is a warrant or a grant of bail (notified by a "Bail Certificate"), plus a "Notice of Committal" transmitted to the Registrar of the National Court (s. 125). An order is made to discharge a defendant, if in custody, when the court is of opinion, there is insufficient evidence to put him upon his trial: s. 102(2), s. 107(2).

But after that, it is no longer a matter for the magistrate, "the statements and documents admitted in evidence" are forwarded to the Public Prosecutor: s. 125.

I have set out these provisions to indicate the similarity of committal proceedings here when compared with the procedure in the cases from other jurisdictions to which I shall refer.

In the present case, a submission was made that the preliminary requirements were not complied with — a matter going to jurisdiction. The required procedure was not followed and the magistrate disregarded the omissions. Mr Kariko submitted as a matter of law, that the order asked does not lie where a magistrate is exercising powers which are administrative and not judicial in nature. He was unable to submit an alternative remedy for error which occurs on committal other than to suggest it was a matter to be raised at the trial. In my view, this is most unsatisfactory although it is the New South Wales position.

There are a number of issues raised by the submission which go to the jurisdiction of this Court, the magisterial function in a committal and the remedy, if any, available to a person if error occurs.

The National Court "has an inherent power to review any exercise of judicial authority" and has "an inherent power to make, in such circumstances as seem ... proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case": see Constitution s. 155(3) and (4). Such applications are provided for in O. 16, r. 1, of the National Court Rules where "orders in the nature of mandamus, prohibition, certiorari or quo warranto shall be made by way of an application for judicial review ...".

Mandamus, prohibition and certiorari historically have been called prerogative writs. Certiorari evolved in the seventeenth century as a general remedy to quash the proceedings of inferior tribunals and was used largely to supervise justices of the peace in the performance of their criminal and administrative functions under various statutes. "The ambit of certiorari and prohibition was not limited to the supervision of functions that would ordinarily be regarded as strictly judicial, and in the nineteenth century, the writs came to be used to control the exercise of certain administrative functions by local and central government authorities which did not act under judicial forms": see Halsbury’s Laws of England (4th ed., 1973), vol. 1 (Administrative Law) par. 80. Perhaps the classic statement on this is by Atkin L.J. in R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Company (1920), Ltd [1924] 1 K.B. 171 at 205:

"... both writs (speaking of prohibition and certiorari) deal with questions of excessive jurisdiction, and doubtless in their origin dealt almost exclusively with the jurisdiction of what is described in ordinary parlance as a Court of Justice. But the operation of the writs has extended to control the proceedings of bodies which do not claim to be, and would not be recognised as, Courts of Justice. Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs."

The nature of certiorari is that the person aggrieved applies to bring the proceedings of an inferior tribunal before a superior court for review to determine whether they should be quashed and to quash them. Generally, this can be done on a number of grounds; excess or lack of jurisdiction; error of law on the face of the record; breach of the rules of natural justice or where the determination was procured by fraud, collusion or perjury. The ground relied upon in this instance is the first and it arises through non compliance with a condition precedent to the exercise of jurisdiction — the mandatory time limitation for service of documents to be relied upon at the hearing.

I have been referred to a number of English authority by Mr Webb where this remedy has been called in aid because of alleged irregularity at a committal hearing: R. v. Bullock [1964] 1 Q.B. 481, where sentence after a purported exercise of the power of committal, which a magistrate would have had, by a quarter sessions court to themselves was quashed through want of jurisdiction to commit in this way; R. v. Coleshill Justices; Ex parte Davies [1971] 1 W.L.R. 1684, where a committal of certain young persons was quashed because a relevant statute dealing with committal procedure for such young persons was not followed and the committal procedure under a different statute could not be used. Two further cases dealt with applications to quash because of errors relating to evidence: R. v. Epping and Harlow Justices; Ex parte Massaro [1973] 1 Q.B. 433 and R. v. Lewes Justices; Ex parte Secretary of State for Home Department [1973] A.C. 388.

The question (and the only question upon which leave to move was granted) in the former case was whether in a committal under the Sexual Offenses Act 1956 (Imp.) against young girl, it is open to the prosecution to support the application for committal to rely upon other supporting evidence and not call the child at all. The court reiterated that the function of the committal proceedings was to ensure no one shall stand trial unless a prima facie case has been made out. The prosecution have this duty and as to which witnesses are called in support is within their discretion. Failure to call a witness even though very important, is not a basis to say there has been a breach of the rule of natural justice and the application was refused. It was assumed sub silentio that it is possible to grant certiorari to quash a committal.

In the second case, certiorari was allowed to quash summonses requiring the attendance of witnesses and production of documents in a court of petty sessions in which an information alleging criminal libel had been laid. It was in the public interest that such documents not be produced. I only assume the proceedings were for a committal because this is not expressly stated in the report, however, the real issue which I am considering was not argued.

The question of the appropriateness of the remedy did not arise in any of these cases and it is easy to see, on the facts of each, why it was availed of. Mr Webb submits that because of the nature of the prerogative writ and of these cases in which a writ has been used in committal proceedings, it can be taken to be the practice of the common law of England. I have doubts if this is the position, as do the learned authors of Review of Administrative Action Whitmore and Aronson (1978), at 435. They considered that the furthest yet (coronial inquests aside) an English court has gone in saying certiorari lies in respect of investigative functions was R. v. Race Relations Board; Ex parte Selvarajan [1975] 1 W.L.R. 1686. On appeal from the Divisional Court’s dismissal of applications for orders of certiorari and mandamus to quash a decision of the Board that there had been no racial discrimination, the respondents argued that the Board’s duty was to make inquiries and not to act judicially. Again the matter was not specifically spelt out but the three judges considered that the Board’s investigations were proper and there was no cause to interfere. Further, Halsbury’s Laws of England (4th ed., 1976), vol. 11 (Criminal Law) par. 1529 says: "Certiorari does not lie to remove a decision of justices to commit or refuse to commit a defendant for trial." The authority for this is R. v. Justices of Roscommon [1894] 2 I.R. 158 to which I will return. Certainly this was the course taken in Ex parte Cousens; Re Blacket [1946] NSWStRp 36; (1946) 47 S.R. (N.S.W.) 145.

This case was precipitated by an information alleging treason but it was for an act of treason committed outside the State’s jurisdiction. This point was taken in the preliminary hearing by a rule nisi for prohibition. At 147, the court said:

"But the absence from the books of any case in which a Superior Court has assumed to exercise a supervisory jurisdiction over magistrates whilst acting in the exercise of this authority — an authority which has been vested in them for hundreds of years — is a strong indication that their power to examine and commit is, in the contemplation of the law, purely executive in its nature."

The rule nisi was discharged.

The court was content to let the matter run its course during which adequate remedies, if applicable, could come to the aid of the accused.

The court had considered R. v. Electricity Commissioners as did the Queensland Supreme Court which took quite a different view of the power to intervene in R. v. Schwarten; Ex parte Wildschut [1965] Qd R. 276. This was a committal hearing during the course of which there was a change of presiding magistrate. Prohibition was obtained. It was argued that the remedy did not lie because the proceedings were ministerial rather than judicial in nature. The court considered cases which went either way and also the legislation setting out what can happen during a committal, that is discharge, committal for trial, dealing with a minor offence established summarily etc. and concluded that it is most difficult to determine where the judicial functions of justices commence and their ministerial functions end. The court then said at 284:

"However, in the light of more recent decisions do we have to decide where one function ends and the other begins? It seems to us that even in making a determination whether to commit for trial or not justices have to weigh the evidence and in that sense make a determination based on a hearing in the conduct of which they may have to act judicially even if they are performing a ministerial function."

The court held R. v. Electricity Commissioners applied to the case without making an administrative/criminal law distinction.

These cases were again considered in Connor v. Sankey [1976] 2 N.S.W.L.R. 570. Certiorari, inter alia, was sought to quash committal proceedings on the ground that the magistrate had no jurisdiction to issue the informations and summonses to appear. No evidence had been tendered or considered. It was from the nature of the informations that jurisdictional question arose. The majority of the Court of Appeal applied Ex parte Cousens. Commenting upon it, Moffitt P. said at 618:

"... The court’s decision was based on the view that, in conformity with a long course of non-interference by superior courts with such inquiries and, having regard to the nature of such inquiries and the safeguards inbuilt into criminal procedures, it was neither permissible nor proper for superior civil courts to interfere with committal proceedings by the exercise of prerogative powers."

and at 630, Reynolds J.A. said:

"... I take that case to be authority for the proposition that the supervisory power of the court does not extend to the particular executive act which an examining magistrate performs in receiving evidence on committal proceedings in respect of an indictable offence."

This was not the position taken by the Chief Justice at 590:

"Along with Blackburn J. in R. v. Nicholl (1973) 21 F.L.R. 469 at 476 and the Full Court of Queensland in R. v. Schwarten [1965] Qd R. 276 at 284, I have difficulty in recognising that a mere labelling of the inferior proceedings is a sufficient classification for determining whether or not they are subject to supervisory control by prohibition. The mere fact that proceedings may, in their entirety, be described as ministerial, executive or administrative does not necessarily import a full description of the exercise upon which the magistrate is engaged. Such strict categorisation may tend to conceal or obscure the answer to the real and significant question: is the committing magistrate discharging a function that, viewed in its entirety, should be and is subject to control by prerogative writ? This was the ultimate question to which the Queensland Full Court addressed itself in R. v. Schwarten; and, in my view, it is the ultimate question to which this Court should address itself."

The Canadian Courts do not appear to see any difficulty in granting relief in committal proceedings by prerogative writ. The matter was fully examined in R. v. Botting (1966) 56 D.L.R. (2d) 25; a decision of the Ontario Court of Appeal on appeal from an order quashing a committal for trial on a charge of theft on the basis of a refusal of adjournment. Although the order to quash was not affirmed in the upshot, the power to do so in certain circumstances was not queried. As Evans J.A. said at 28:

"In my view, the right to intervene is restricted to those instances in which there has been either a want of or an excess of jurisdiction in the proceedings below. If no such defect in jurisdiction is established then the proceedings are terminated and the application dismissed. The function of the Superior Court is supervisory only and any inquiry upon which it embarks is restricted to a determination as to whether the inferior tribunal acted within the scope of its jurisdictional competence. Once jurisdiction has been confirmed, and there is no evidence of any failure to comply with some mandatory statutory requirement, then no review of the discretion exercised by the presiding officer of the inferior tribunal may be undertaken. To do so would constitute an improper invasion and usurpation of the discretionary power vested in the lower tribunal and would constitute the exercise of an appellate function. A reviewing of evidence does not fall within the scope of a certiorari application.

There is some judicial authority for the proposition that certiorari does not lie to quash a committal on a preliminary hearing since the remedy is appropriate only to tribunals, the decisions of which are conclusive and final adjudications. A preliminary hearing is an intermediate step in a judicial proceeding and as such differs from a Coroner’s inquest, a warrant to search, a warrant to arrest or a proceedings before a Labour Relations Board. I am unable to accept this proposition. A tribunal either has or has not jurisdiction; it either did or did not exceed that jurisdiction which has been conferred on it and in my opinion the finality or otherwise of the adjudication is immaterial."

Laskin J.A. (as he then was) approached the matter by asking a number of questions raised by the objection to jurisdiction. (1) Does certiorari lie to quash a committal? (2) If certiorari lies, upon what grounds may it be taken? (3) What material is the court entitled to look at to see if a permissible ground has been established?

He examined the nature of the preliminary inquiry of committal for trial under the Criminal Code and said the application of certiorari was seen in the developed case law and common law doctrine. He considered the cases including R. v. Electricity Commissioners and R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 K.B. 388 in which Denning L.J. (as he then was) sets out at length the history and development of certiorari, and concluded:

"A number of landmark cases on certiorari have emphasised that it is enough to subject an inferior tribunal to review of its exercise of jurisdiction if it is a tribunal that has had to decide questions affecting the rights of a subject: ... I construe the reference to ‘rights’ broadly as involving a position which may be adversely affected by a decision. Thus, in a case of a committal for trial, an accused is adversely affected, even if there is no adjudication of guilt, because he is compelled to seek bail if he would regain his freedom pending indictment and trial: ... Finally on this point, even if there be no immediate prejudice to an accused committed for trial (and I have already indicated my view that there is such prejudice), I am of opinion that certiorari should lie because, ... a committal for trial is an integral part of a process which may terminate in action prejudicial to the accused.": See 36 and 37.

With that statement, I respectfully agree.

It is clear that the Ontario Court of Appeal in deliberate judgment, held that the common law would permit in a proper case the grant of a writ of certiorari in respect of committal proceedings — the proper cases being want or excess of jurisdiction and denial of natural justice.

I now turn to R. v. Justices of Roscommon. Unfortunately, I am unable to obtain a copy of the relevant Irish Report. The case was closely analysed by Laskin J.A. and considered by Evans J.A. and with differing results considered by the Queensland and New South Wales Courts of Appeal. As I thus reconstruct the case, it appears certiorari was sought to quash a committal on the basis that there was no evidence before the magistrate that the alleged offence had been committed. The Cousens’ court (at 148) took it as supportive of their view which I have set out, whilst the Schwarten court took it as authority that prohibition would lie if bias or want of jurisdiction was established and that in committal proceedings the functions of justices were judicial (see 283). In Botting, according to Evans J.A., only one of the justices said that certiorari never lies to attack a committal for trial and it thus does not stand for this broad principle. Laskin J.A. gives more detail on what he considers each of the four justices said; (1) committing magistrates had a wide discretion which was not reviewable; (2) there was no precedent in the books for the use of certiorari to quash a committal; (3) the determination to commit for trial was a judicial act or finding but there was no order involved and hence no record to be brought up on certiorari and (4) one justice said certiorari extended only to inferior tribunals "in the exercise of definite, exclusive and final judgment" and a committing magistrate did not so qualify.

After Botting, the bald statement in Halsbury must be looked at advisedly. There is persuasive authority that although the judgment in Roscommon contained such dicta, it was not the authoritative principle upon which the case was determined. Prerogative writs are available in other jurisdictions and where not (N.S.W.), strong arguments are advanced to the contrary.

I mention these matters as the applicable law is the common law of England (as at 16 December 1975, Constitution Sch. 2.2) which is not inconsistent with a constitutional law or a statute or inapplicable or inappropriate to the circumstances of this country.

My own researches have left me in some doubt as to the English position specifically in regard to committals. I have had no assistance from submissions on behalf of the Public Prosecutor and quite misleading written submissions on behalf of the applicant. The continuous development of prerogative writs, somewhat slowed of late by a growing recourse to declaratory orders, nevertheless, shows their usefulness and also the unreality today in drawing distinctions of ministerial/judicial functions. Many of the powers exercised by a committing magistrate are identical to those exercised by a magistrate in a summary hearing, that is, both can issue summonses and warrants. In a summary hearing certiorari and prohibition lie. I am aware of the development of the law in other jurisdictions and if I have some doubts as to the common law in England, there are clear and cogent reasons to suggest that the drawing of distinctions in magisterial functions, should not be fostered in this jurisdiction so as to deny a remedy, when necessary at the committal stage of criminal proceedings. What then is to be the underlying law?

In developing the underlying law, (Constitution Sch. 2.3), I consider the development of the law elsewhere and Atkin L.J.’s statement in R. v. Electricity Commissioners applicable to committal proceedings. The "Protection of the Law" safeguards, Constitution, s. 37, make no distinction between a committal and a trial, see subss (1), (2), (3) and (4) and thus I am reinforced in my view. I conclude with a statement of Street C.J. from Connor v. Sankey at 591 which I consider an applicable and appropriate summation of the law to be applied.

"... To say of a decision to commit or not to commit that it is not a determination affecting the rights of subjects involves an unacceptable degree of judicial remoteness from the plain, incontrovertible significance that attaches to such decision in ordinary circles (certainly to the person who is either committed for trial or released). And I regard it as equally unacceptable to contemplate a committing magistrate being free from the duty to act judicially in the exercise of his statutory powers within the procedural framework laid down in the Justices Act. He falls precisely within Atkin L.J.’s statement [1924] 1 K.B. 171 at p. 205, and it is not necessary either to particularize the wide-ranging scope of his powers, or to call in aid the prejudicial concomitants of exposure to committal proceedings, in order to substantiate the justification, in the due administration of our system of justice, for affording a person subjected to such proceedings the supervisory protection of this Court."

Order therefore in the nature of certiorari to bring up to this Court and quash the committal for trial of Allan Douglas Rush.

Orders accordingly.

__________________________

Lawyer for the applicant/plaintiff: Beresford Love Francis & Company.
Lawyer for the respondent/defendant: The Public Prosecutor.