Justiciability of Decisions in the Criminal Process: Review of Committal Proceedings in the Federal Court
| Author | Bronwyn Naylor |
| DOI | 10.1177/0067205X9001900402 |
| Published date | 01 December 1990 |
| Date | 01 December 1990 |
| Subject Matter | Article |
352
Federal
UJw
Review
[VOLUME
19
JUSTICIABILITY
OF
DECISIONS
IN
THE
CRIMINAL
PROCESS:
REVIEW
OF
COMMITTAL
PROCEEDINGS
IN
THE
FEDERAL
COURT
BRONWYNNAYLOR*
1INTRODUCTION
Justiciability is acentral concept in administrative law. It is used to define the
limits
of
judicial review, limits drawn in terms
of
"judicial conceptions
of
the
proper relationship between the cowts and the executive".1 This paper examines
the limits on judicial review
of
one part
of
the criminal process.
Decisions made
at
acriminal trial can
be
challenged by statutory avenues
of
appeal
or
tless usuallytby judicial review. Decisions earlier in the criminal
process, however, are generally unreviewable
at
common law. For avariety
of
reasons, they have "enjoyed aspecial immunity from judicial review."2 The
discretions to prosecute,
or
to discontinue aprosecution, have been regarded as
non-reviewable exercises
of
prerogative
powers)
Where equivalent powers have
been conferred by statute, the unlimited terms in which they are granted has
similarly meant they are unreviewable.4Even with moves to greater review
of
prerogative powers in Australia and overseassprosecution decisions continue to
be regarded as unreviewable. As they involve awide and unstructured discretion,
with alarge policy component, they are said to be more appropriately
accountable to Parliament than to the courts.6
Committal proceedings have different features. They are statutory in origin,
and the discretion being exercised is statutorily defined. There have however also
been doubts about their amenability to review,
at
least by the prerogative writs.
One reason, as will
be
seen, has been the traditional classification
of
the
magistrate's function as executive rather than judicial.
The "New Administrative Law", and in particular the establishment
of
review
under the Commonwealth Administrative Decisions (Judicial Review) Act 1977
(AD(JR) Act), has seen awidening
of
review
of
the criminal process. Many
decisions have been held to fall within the Federal Court's jurisdiction as
*
1
2
3
4
5
6
BA
(Hons) LLM (Mon), MPhil (Camb), Lecturer-in-Law, Monash University.
An
earlier version
of
this paper was delivered at the Conference on the Future
of
Committals, Australian Institute
of
Criminology, Canberra, May 1990. The author
acknowledges the detailed comments
of
Peter Hanks and Susan Kneebone, and the
comment also provided
by
Jeffrey Barnes and Richard Fox, on preliminary drafts of
this paper.
MAllars, Introduction to Australian Administrative Law (1990) 43.
Ibid
45.
See RvProsser (1848)
11
Beav 306; Gouriet vUnion
of
Post Office Workers [1978]
AC 435; Barton vR(1980) 147 CLR 75, 90-95.
Barton vR(1980) 147 CLR 75, 94; and see Clyne vAttorney-General (Cth) (1984)
55 ALR 624.
See Rv
TOOMy;
ex
parte Northern Land Council (1981)
151
CLR 170; Council
of
Civil Service Unions vMinister
for
the Civil Service [1985]
AC
374.
See Rv
TooMy;
ex parte
NortMrn
Land
Council (1981)
151
CLR 170, 219
per
Mason J; Barton vR(1980) 147 CLR 75, 91, 94-5.
1990]
Justiciability
of
Decisions
in
the
Criminal
Process
353
decisions
"of
an administrative character made ... under an enactment".7
Jurisdiction has been found -or conceded -to exist under the AD(JR) Act in
relation to decisions to prosecute, to consent to prosecution, and to proceed by
indictment rather than summarily.8 Jurisdiction to review has also been accepted
in relation to committal proceedings for criminal offences.9The extension
of
judicial review in the federal sphere, provided an "administrative" decision "under
an enactment" can
be
located, appears to have overridden the common law
immunity. However the Federal Court in fact exercises its powers in these
matters only in "exceptional" circumstances, as will
be
discussed below. The
discussion here will focus on the review
of
committal proceedings for offences
against federal law. The paper will examine the current state of the law regarding
review
of
committals under the AD(JR)
Act
It will then analyse the matters
of
principle
at
issue, and the implications
of
these broader principles for the
direction
of
reform. First,
it
is necessary to outline the nature
of
committal
proceedings.
2THE OPERATION OF COMMIlTAL PROCEEDINGS
People charged with serious criminal offences in Australia have the case
against them evaluated in a"preliminary examination" or committal hearing, the
object
of
which is to test the sufficiency
of
the prosecution evidence.
Preliminary examinations are intended to protect the citizen from being
prosecuted on inadequate evidence, by filtering out weak or unmeritorious cases.
This is seen as benefitting the state, by promoting efficiency in criminal
prosecutions; it also benefits the accused, ensuring he or she is not prosecuted
without some material evidence
of
guilt. Committals for offences against both
State and federal laws are heard in state Magistrates' Courts; the procedures
followed are those prescribed in the relevant state legislation.lOIn their
traditional form they entail afonnal adversarial hearing
in
amagistrates' court.
There are two stages at which decisions must be made in committal hearings:
the completion
of
the prosecution case, and the close
of
the defence case (ifany).
In Victoria, for instance, having heard the prosecution case amagistrate is
required to decide whether the evidence "is
of
sufficient weight to support a
conviction".
If
not, the magistrate is required to discharge the accused. Otherwise
the accused is cautioned and invited to plead or make answer to the charge. The
magistrate also has power
at
this point to decide whether the evidence is
sufficient to support aconviction for some other indictable offence, and
if
so
7
8
9
10
Administrative Decisions (Judicial Review) Act 1977 s3(1). Note that prosecution
decisions are not included in Schedule
1,
which exempts specified decisions from
review; they are however protected from the s
13
duty to provide reasons under
Schedule 2. The non-inclusion
of
such decisions in Schedule 1
was
considered
significant by the Federal Court in Newby vMoodie (1988)
83
ALR 523, 527.
On
the issue
of
the abrogation
of
prerogative powers by statute see MAllars, supra n
1,
47,96.
See Newby vMoodie (1988)
83
ALR 523; Murchison vKeating (No 2) (1984) 54
ALR 386; Buffier vBowen (1987) 72 ALR 256; Murchison vKeating (No 1) (1984)
54 ALR 380.
Lamb
vMoss (1983) 49 ALR 533.
The state courts are invested with federal jurisdiction to hear committals for federal
offences by s68(1) and (2) Judiciary Act 1903 (Cth) and s85E(I) and (5) Crimes
Act 1914 (Cth». On procedures followed at committals see generally DBrereton and
JWillis, The Committal
in
Australia (1990).
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