Citation: Kumaragamage v McLoughlin & Ors [2000] NSWSC 620
Court: Supreme Court of New South Wales, Common Law Division
Date: 6 July 2000
Judge(s): Master Macready
Background
The plaintiff, a self-represented litigant, had acted as a private informant in two committal proceedings in the Local Court. He alleged that the first defendant, a regional manager employed by the NSW Department of Transport, and the second defendant, a solicitor retained by the Department, had committed acts intended to pervert the course of justice under s 319 of the Crimes Act 1900.
The alleged perversion of justice arose from the service of a summons against the plaintiff for operating a public transport service without authorisation. The address recorded on that summons was incorrect, being an address where the plaintiff had lived approximately three years earlier. The plaintiff contended the incorrect address was deliberately recorded to secure a conviction in his absence, which is what occurred. The conviction was ultimately set aside and the underlying proceedings were apparently withdrawn.
At the committal hearing, the Magistrate (the third defendant in these proceedings) found that the evidence did not establish a prima facie case and discharged the two defendants. The plaintiff then applied to the Supreme Court for orders in the nature of certiorari to quash that discharge decision, as well as a related decision declining to issue an arrest warrant for a third person, Patrick Culbert, who had emigrated to Ireland.
Legal Issues
- Whether the Supreme Court had jurisdiction to grant certiorari to quash a Magistrate's decision to discharge defendants in committal proceedings
- Whether the Magistrate erred in law by misapplying evidentiary rules, including the hearsay rule, or by applying the wrong test at the committal stage
- Whether the Magistrate demonstrated apprehended bias, including by refusing to disqualify himself
- Whether the Magistrate's refusal to issue an arrest warrant for the absent third defendant was reviewable at this stage
- Whether, even if some ground for relief existed, the court should exercise its discretion to grant certiorari
Decision
Master Macready noted a long-standing controversy in NSW about whether prerogative relief is available to quash committal proceedings decisions at all. A line of authority holds that a Magistrate's function in committal proceedings is executive rather than judicial, meaning certiorari does not lie. Contrary authority suggests relief may be available where a Magistrate acts without or in excess of jurisdiction. The Master proceeded on the basis that relief could in principle be available, but found no grounds for it on the facts.
On the substantive grounds, the Master found no error of law and no want or excess of jurisdiction in the Magistrate's conduct. The plaintiff's evidence before the Magistrate was largely inadmissible, and the Magistrate had conducted the inquiry appropriately while according the plaintiff procedural fairness. The bias allegations were not made out on the material before the court.
Regarding the arrest warrant for Patrick Culbert, the Magistrate had not in fact declined to issue a warrant in any final sense. The committal proceedings against Culbert had been deferred at the plaintiff's own request, pending the outcome of these Supreme Court proceedings. The Master found no impropriety in the Magistrate's approach and nothing in that conduct capable of supporting the relief sought.
Even had some technical ground for relief existed, the Master declined to exercise the court's discretion in the plaintiff's favour. The Attorney General or Director of Public Prosecutions retains the power to file an indictment independently of any Magistrate's discharge decision. The nature of the material the plaintiff had put before the Magistrate was largely inadmissible, and there was no basis to conclude that quashing the decision would lead to a different outcome.
Orders Made
- The Summons was dismissed.
- The plaintiff was ordered to pay the defendants' costs.
Key Takeaways
- A significant body of NSW authority holds that certiorari does not lie against a Magistrate's decision in committal proceedings on the basis that the Magistrate's function is executive, not judicial. Master Macready did not resolve that controversy but proceeded to dismiss the application on the merits regardless.
- No grounds for certiorari existed where the Magistrate had applied the correct prima facie test at the committal stage, committed no identifiable error of law, and afforded the private informant procedural fairness throughout.
- Allegations of bias require substantiation in the evidence and transcript. Here, none of the specific bias allegations raised by the plaintiff were supported by the material before the court.
- Even where grounds for certiorari technically exist, the court retains discretion to refuse relief. A key discretionary factor is that the Attorney General or Director of Public Prosecutions may independently file an indictment, making curial intervention unnecessary.
- Where evidence tendered at a committal hearing is largely inadmissible, and the private informant gives no indication of a different approach on any rehearing, the court may take that into account as a further reason to withhold discretionary relief.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 319 (perverting the course of justice)
- Supreme Court Act 1970 (NSW), s 69
- Justices Act 1902 (NSW), s 41(2)
- Passenger Transport Act 1990 (NSW), s 7
Cases
- Jayasena v The Queen (1970) AC 618
- Ex parte Cousens; Re Blackett (1946) 47 SR (NSW) 145
- Ex parte Coffey; Re Evans (1971) 1 NSWLR 434
- Connor v Sankey (1976) 2 NSWLR 570
- Spautz v Williams (1983) 2 NSWLR 506
- Wentworth v Rogers (1983) 3 NSWLR 161
- Waterhouse v Gilmore (1988) 12 NSWLR 270
- Sankey v Whitlam (1978) 142 CLR 1
- Regina v Bedwellty Justices; Ex parte Williams [1997] AC 225
- Re Robins SM; Ex parte West Australian Newspapers Ltd (1999) 105 A Crim R 555