The Charter and committals

Tony Mokbel, perhaps alone amongst the alleged gangsters from Victoria’s underbelly, will have at least some of his charges resolved in proceedings governed by the Charter, assuming the judges running his case get the date right in Charter s. 49(2):

[I]n February and March 2006, the plaintiff was tried in the Supreme Court on one count of importation into Australia of a prohibited import, namely cocaine, in November 2000, contrary to s 233B(1)(d) of the Customs Act 1901. After the conclusion of evidence, and during the Crown Prosecutor’s address, the accused absconded while still on bail….

Between 27 February 2007 and 20 June 2007, Victoria Police filed in the Magistrates’ Court a further 15 charges against the plaintiff. Those charges included two charges of murder and five charges of trafficking in a large commercial quantity of a drug of dependence. The plaintiff was arrested in Greece on 5 June 2007.

However, Mokbel’s attempt to head-off his coming criminal trials failed yesterday.  In Mokbel v DPP (Vic) & Ors [2008] VSC 433, Justice Stephen Kaye knocked back an application for a stay based on Mokbel’s extradition occurring while his action before the European Court of Human Rights resisting the extradition was unresolved.  Presumably, Mokbel’s Charter action would have been based on his lawyer Mirko Bagaric’s argument that pre-trial publicity means that he cannot have a fair trial.  The ruling didn’t discuss the Charter, but Kaye’s rulings carry mixed news for any furture reliance on the Charter’s fair hearing right.

Kaye’s main holding was that the remedy of a stay for abuse of process is not available for committals. One of the two lynch-pins of his decision is good news for criminal defendans wishing to raise the Charter:

It is useful to commence with the appropriate characterisation of committal proceedings. In Phelan v Allen, the Full Court held that a stipendiary magistrate, in a committal proceeding, exercises a ministerial, and not judicial function, and accordingly an order by him striking out the information and discharging the defendant might not be the subject of judicial review under s 155(1) of the Justices Act 1958. In Grassby v R, the High Court held that a magistrate does not have power to stay committal proceedings as an abuse of process. In reaching that conclusion, Dawson J (with whom Mason CJ and Brennan, Deane and Toohey JJ agreed) recognised that it had been “consistently held” that committal proceedings do not constitute a judicial inquiry, but “ … are conducted in the exercise of an executive or ministerial function”. As such, the role of a magistrate or justice in holding a committal is essentially inquisitorial and administrative. Finally, in Potter v Tural; Campbell v Bah, two defendants sought judicial review of the decision of the magistrate refusing leave to cross-examine certain witnesses in the course of criminal proceedings against them. On review, the primary judge quashed the decisions of the magistrate. That decision was reversed by the Court of Appeal. Batt JA (with whom Tadgell and Callaway JJA agreed) commenced his reasons by stating: “It is established by a long line of authority in Victoria that a magistrate’s order committing for trial or refusing to commit is ministerial and not judicial and also is not amenable either to certiorari … or to appeal under statutory appeal procedures replacing certiorari.”

So, committals aren’t judicial, but are rather ‘ministerial’. Kaye distinguished UK committals on the ground that they determine whether or not charges will go ahead; Australian committals, by contrast, are neither here nor there: an Australian prosecutor can ignore both a positive ruling at a committal (by entering a nolle prosequi) or a negative one (by commencing anex officio indictment.) The point of Australian committals is a bit of a mystery, and they are mostly justified by the opportunity they give defendants for discovery of the case against them.

This issue is relevant to Charter matters, because of the dreaded Charter s. 4(1)(j) partial exemption for courts and tribunals from the conduct mandate:

4(1) For the purposes of this Charter, a public authority… does not include-… (j) a court or tribunal except when it is acting in an administrative capacity;…

Note Committal proceedings and the issuing of warrants by a court or tribunal are examples of when a court or tribunal is acting in an administrative capacity. A court or tribunal also acts in an administrative capacity when, for example, listing cases or adopting practices and procedures.

Doubtless, the combination of these rulings and the note to Charter s. 4(1)(j) will be taken to have basically settled the matter. And that’s basically a good thing, as the Charter s. 4(1)(j) is stupid anyway. But I think that there is still room for doubt.

It’s one thing to say that committal’s aren’t judicial. But that doesn’t mean that they are administrative. Even the EM to the Charter seems to concede that there’s a hazy area in-between, which will also fall within the exemption:

The obligation to comply with the Charter does not, however, extend generally to Parliament or Parliamentary proceedings or to the courts when acting in a judicial or quasi-judicial capacity (paragraphs (i) and (j)).

And, if anything is quasi-judicial, it’s committals. Here’s what the High Court had to say when it was considering whether or not Lionel Murphy’s alleged interference with a committal was ‘perverting the course of justice’:

The hearing of committal proceedings in respect of indictable offences by an inferior court is a function which is sui generis. Traditionally committal proceedings have been regarded as non-judicial on the ground that they do not result in a binding determination of rights. At the same time they have a distinctive judicial character because they are curial proceedings in which the magistrate or justices constituting the court is or are bound to act judicially and because they affect the interests of the person charged… The procedure followed on the hearing of committal proceedings is similar to that followed on the hearing of judicial proceedings…  Subject to the provisions of applicable Bail Acts, the ordinary consequence of an adverse determination of them is, as their name implies, the commitment to prison of the accused until the sittings of the court before which he is to be tried…  Even though they are properly to be regarded as non-judicial in character, committal proceedings themselves traditionally constitute the first step in the curial process, possibly culminating in the presentation of the indictment and trial by jury. They have the closest, if not an essential, connexion with an actual exercise of judicial power.

To the extent that there’s any sense to Charter s. 4(1)(j) (which, alas, there isn’t), it surely makes sense to have committal hearings and trials bound by the same (lack of) rules, given their intimate link. What madness would it be if Mokbel could be tried, but, thanks to the conduct mandate, couldn’t be commited for trial, due to a Charter problem caused by pre-trial publicity?This circumstance couldn’t help Mokbel, because the DPP could just issue an ex officio indicment (unless, of course, the DPP was similarly barred by the conduct mandate.) Mokbel would then be denied the collateral benefits of having a committal hearing.

The other lynch-pin of Kaye’s reasoning in any case reveals how difficult it would be for Mokbel or anyone to get a remedy for a breach of the conduct mandate by a court running a commital or a prosecutor issuing an ex officio indictment or failing to enter a nolle:

[T]he doctrine of abuse of process is only available to prevent an abuse of a court’s judicial processes. Save in the case of the three trafficking charges, for which the plaintiff has already been presented for trial in the Supreme Court, the other charges against the plaintiff, which are the subject of the application before me, have not yet been the subject of committal proceedings. The forthcoming committal proceedings in respect of those charges are not part of the judicial process, and are not amenable to the doctrine of abuse of process. Furthermore, the relief sought by the plaintiff, in respect of those charges, is an invitation to the Court to enter upon an interference with the prosecutorial discretion, which was proscribed by the High Court in Maxwell’s case. In short, apart from the three trafficking charges, there is no court process which is capable of being the subject of an abuse. It is not for this Court to interfere with the exercise of the prosecutorial discretion in charging the plaintiff, and bringing him before the Magistrates’ Court for the purpose of the ministerial function of that Court of conducting committal proceedings in respect of those charges.

Basically, as I’ve previously posted, Victorian criminal procedure resists having any remedies other than ones issued at the trial. So, even though prosecutors and committals may well be bound  by the conduct mandate, there’ll be no Charter remedy, thanks to Charter s. 39(1):

39(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

A stay will be available at the trial in respect of breaches of the conduct mandate by the court running the committal, but there are two problems. First, I think it’s arguable that a stay falls outside of Charter s. 39(1) because it isn’t ‘on the ground that the act or decision was unlawful’. Second, in any case, how likely is it that a trial court is going to hold that a trial should be stayed because an optional precursor to the trial didn’t happen?

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