Home | Databases | WorldLII | Search | Feedback High Court of Australia Transcripts

You are here: 

Kumaragamage & Anor v Culbert & Anor S3/2001 [ 2001] HCATrans 591  (20 November 2001)

Sydney No S3 of 2001

B e t w e e n -

DON KUMARAGAMAGE

First Applicant

PRABHA KUMARAGAMAGE

Second Applicant

and

PATRICK CULBERT

First Respondent

MR JOHNSON LCM

Second Respondent

Office of the Registry

Sydney No S4 of 2001

B e t w e e n -

DON KUMARAGAMAGE

Applicant

and

JOHN McLOUGHLIN

First Respondent

ANDREW WOZNIAK

Second Respondent

SEAN FLOOD LCM

Third Respondent

Applications for special leave to appeal

GLEESON CJ

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 20 NOVEMBER 2001, AT 10.58 AM

Copyright in the High Court of Australia

MR D. KUMARAGAMAGE appeared in person.

MR D.A. BUCHANAN, SC: May it please the Court, I appear with my learned friend, MR D. JORDAN, for the first and second respondents. (instructed by Smythe & Mallam Solicitors)

GLEESON CJ: Now, can I ask you this, Mr Kumaragamage, and you, Mr Buchanan, these two matters 5 and 6 are related historically, but they are separate proceedings. Is it convenient to deal with 5 first and then 6 or do you want to deal with them both together?

MR KUMARAGAMAGE: I would say, your Honour, we deal with No 5 Culbert first, then - - -

GLEESON CJ: Yes. Yes, Mr Kumaragamage.

MR KUMARAGAMAGE: May it please the Court, your Honours, issue for the special leave is a question of law, in particular a conflict between two sections within the Passenger Transport Act of New South Wales. Section 4 is the objects of the Act, your Honours, and section 7 is a penal provision of the Act. The issue I am placing before your Honours is that judges of the courts below ruled that in the conflict between a penal provision and the purposes or the object of the Act, the penal provision prevails or the purpose of the Act. So that is the issue I am going to place before your Honours today.

Before I elaborate my argument, your Honours, with respect, please let me depart from the argument for a few minutes to explain something else. Your Honours, I apologise to your Honours for representing myself due to my financial constraints today. In fact, I did not want to represent myself, but I did not have any other choice. However, your Honours, I do not classify myself as a layman. During the last few years, I was able to complete a Bachelor of Arts in Law, equivalent of a Bachelor LLB in Australia, and also PhD in Criminal Justice with the Donald University in California. Your Honour, at present I am enrolled with the University of Western Sydney and I am doing a BLT with the intention to be admitted as a legal practitioner in New South Wales.

Having said that, your Honour, I now get back to my submissions. Your Honours, my wife and I were prosecuted under section 7 of the Act for carrying on public passenger services without accreditation in New South Wales. At the Local Court hearing there were serious question marks on who operated the service. Without going into that area and without admitting that we operated any service, I place this argument not relevant to that question. Your Honours, my argument is I invite your attention to section 4(b)(ii) of the Act, so your Honours are familiar with the Act. One of the objects of this Act is and was at the material time deregulation of long-distance and tourist services in New South Wales. It is important to note that this deregulation is without any reservation. Your Honours, may I invite your attention to page 5 and line 30 of the appeal book. His Worship in the Local Court said in his judgment - - -

GLEESON CJ: Can I just interrupt you for a moment to say that in this matter there is a certificate from the Deputy Registrar that she has been informed by the second respondent that the second respondent does not wish to be represented at the hearing of this matter and will submit to any order of the Court save as to costs. Yes, go ahead.

MR KUMARAGAMAGE: His Worship made an assessment of what the service was and his Worship said:

If this assessment is correct, then the defendants, in carrying these passengers on this day, did so as a tourist service or services.

But notwithstanding the law in the Passenger Transport Act, his Worship has still convicted the accused, myself and my wife. Your Honours, parties agree that "tourist service" is a kind of public passenger service. Section 7 of the Act says the Director-General is to regulate and issue accreditations for public passenger services. Section 4, on the other hand, says that the Director-General has no such power with regards to two kinds of public passenger services, being tourist service and long-distance service. The question for the Local Court was whether the meaning of "public passenger service" within section 7 catches the deregulated services as well as the other services or it catches public passenger services, excluding deregulated services. That was the question for his Worship.

Now I invite your attention to page 8, line 37. His Worship said:

If there is ambiguity in the meaning . . . I should adopt an interpretation which would protect the public -

Needless to say, your Honour, that this was not the correct approach. Why I say that - before I explain, I take your Honours' attention to page 87, line 9. My friend Mr Game in their arguments said that this very approach was correct. In line 9, on page 87, my friend has said that his Worship's approach is supported by the purposes of the Act. In the footnote my friend listed the applicable purposes of the Act. Footnote 18 says, "ss 4(a), 4(e), 7(2)." Your Honours, the only applicable purpose in this case is section 4(b). Why my friend cannot see the law to the High Court - where is the barrister's duty to the Court? Your Honours, I do not want to make a big deal out of it, but this is a matter to be pointed out here.

Going back to his Worship's argument that if the legislation is ambiguous judges should adopt an interpretation which would protect the public, may I submit what his Honour Justice Gibbs of this Court said in his reasoning of judgment of Paull v Munday (1976) 50 ALJR 551. At page 555 column 1, paragraph 4, his Honour Gibbs said:

the courts are not concerned with its wisdom or expediency; they are only concerned with the question whether the statute permitted the Governor to make -

the law.

May I now invite your Honours' attention to what his Honour Justice Murphy said in Yager v The Queen [1977] HCA 10; (1977) 139 CLR 28 at page 50, the last paragraph. His Honour said:

The traditional rule that a criminal statute, if ambiguous, should be construed strictly, that is, in favour of the accused -

Your Honours, the strict construction - or at least section 33 of the Interpretation Act would have been applied if his Honour decided that the legislation was ambiguous. If the purpose rule was applied, then the object of the Act must prevail. Your Honour, the Department did not have power to regulate tourist services and the Department even today does not have power to regulate tourist services. It means that the judgment of his Worship was a miscarriage of justice.

The Supreme Court Master who heard this case and the Court of Appeal did not rule that his Worship was wrong, apparently because I could not pass the message properly due to my lack of communication skills, maybe. Your Honours, that is the issue for special leave. Your Honours, this case carries enormous public interest. At least there are 30 to 40 cases in the Local Court pending decisions awaiting outcome of this case. I have pointed out in my summary of arguments and there is no challenge to that. It was by all means a miscarriage of justice.

Your Honours, the other interesting point is that your Honours have not spoken about the meaning of the word "deregulation" in this Court. The Macquarie Dictionary is the only authority I have to present to your Honours. The dictionary says "deregulation" means:

the removal of regulations, esp. government regulations, that restrict certain types of activity -

from an industry.

Your Honours, and more importantly, today's situation is that there is a judgment effectively making an object of the Act inoperable. It must be rectified, otherwise all the tourist service operators in New South Wales will be required to obtain accreditation, notwithstanding the Parliament's intention was to deregulate those services without reservation. This is the end of my submissions.

GLEESON CJ: Thank you. We do not wish to hear you in this matter, Mr Buchanan. Call the next matter. Yes, Mr Kumaragamage, let us have your submissions.

MR KUMARAGAMAGE: May it please the Court, your Honours, the issue for special leave in this case is also a question of law, together with the question of fact. This is rather a rare case or maybe a very unusual case, your Honour. I have to quickly go back to the very beginning of the chronology of the matter to explain my issue.

If your Honours may remember Sankey v Whitlam Case, this case is very much similar to that case. As a private informant, I issued summonses to three people, being two solicitors and the then regional manager of the Department of Transport, Parramatta. In this case today - - -

GLEESON CJ: Can I interrupt you again, Mr Kumaragamage, to say that in this matter there is a certificate from the Deputy Registrar that she has been informed by the solicitor for the third respondent that the third respondent does not wish to be represented at the hearing and will submit to any order of the Court save as to costs.

MR KUMARAGAMAGE: Thank you. Your Honours, in this case the first respondent is the regional manager, Mr McLoughlin, and the second respondent is a solicitor, Mr Wozniak. What happened to the third person is interesting, as he was the Department's own solicitor employed by the Department. Immediately after I issued the summonses, he resigned from the Department and left Australia permanently. My friend Mr Game said he was living in Ireland. Well, your Honours, the allegation was section 319 of the Crimes Act, perversion of the course of justice. Since the Local Court magistrate did not have the jurisdiction to finalise the matter, his Worship conducted the committal hearing of the matter. At the committal hearing his Worship made a serious assessment of evidence and his Worship did weigh the evidence and excluded around 85 per cent of the evidence and exhibits adduced by the prosecution. Even after excluding the evidence, his Worship said before discharging the defendant, "I am satisfied that the defendants did an act of perversion of the course of justice but I could not find the evidence of criminal intent. Therefore, I discharge the defendants".

The issue for the special leave case, two questions, your Honours. Is it the function of committing magistrate to weigh evidence and exclude evidence on hearsay argument? If the magistrate was satisfied that actus reus of the offence was established, is he obliged to commit the defendants for trial? Firstly, before I elaborate my argument, for the argument's sake, I would say the evidence excluded was not hearsay. His Worship excluded evidence of a default judgment delivered by his Worship himself on the basis of hearsay. On page 99, from line 23, I have listed my case which I have established in the Local Court. The evidence and exhibits established conspiracy with the police officer to arrest myself and evidence of arresting myself when I was innocent, malicious criminal charges and so on.

But his Worship reduced the case to the following points. His Worship accepted that the respondents issued summonses against me and my wife under section 7 of the Passenger Transport Act. Your Honours, the summonses under the Passenger Transport Act section 7 in these two cases are different. These are not the summonses what we were talking about in the previous case. His Worship accepted that they did not serve the summonses on the accused. Instead, on the day of mention, they submitted affidavits of services to the magistrate and asked for the default judgments. Obviously, the magistrate was misled and his Worship convicted the accused and fined $1000 each. After I found out, I put an application for annulment and after hearing the application for annulment and after hearing the case, his Worship dismissed the charges and the information. Your Honours, those are the facts his Worship accepted that I have established as a prima facie case in the committal hearing.

His Worship did not exclude the exhibit which was the affidavit of service signed by the defendants. It was my argument that that affidavit itself was sufficient not only to establish the case, your Honours, but also to prove the case even beyond reasonable doubt.

Going back to the issues for special leave, is it a function of committing magistrates to weigh evidence and exclude evidence on hearsay argument? The question too, if the magistrate was satisfied that actus reus was established, is he obliged to commit the defendants for trial?

It is very well accepted that a function of committing magistrate is an administrative function, it is not a judicial one. If this is correct, what his Worship did was wrong, which is excluding evidence on hearsay argument.

Your Honours, the important thing is these issues have not been addressed in this Court before. I did extensive research on this. I do not have any High Court case to support my argument. However, these questions have been comprehensively answered at the Court of Appeal or Supreme Court level. One of them was Lionel Murphy v DPP Case, your Honours, the citation was Murphy v DPP (1965) FCR 55, page 5, paragraph 21, His Honour Justice Toohey of Federal Court when his Honour was in the Federal Court in those days, referring to a number of cases such as Jayasena v The Queen, his Honour said:

It is not his function to weigh the evidence or assess its acceptability whether in relation to the character of the evidence itself or the credibility of the witnesses who gave it. He is required to assume that it is accepted without reservation by a jury. Upon that assumption he asks himself whether a jury accepting all the prosecution evidence could lawfully convict the defendant -

Another classic case was the Arthur Farrell Matter. It has been reported as a Federal Court Report, your Honour, but it is a Tasmanian Case, (1995) FCR 28; that is Court of Appeal Tasmanian Supreme Court case. In his judgment, his Honour Justice Zeeman said in reasoning:

Generally speaking it is not a function of committing magistrate to weight or assess evidence by reference to its character or the credibility of the witness who gave it. The test is no different from that expressed in May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654. An application of the test requires that a magistrate leave out of account evidence to the contrary of what is a clear incontrovertible and established state of affairs if it is evidence which no tribunal of fact could lawfully act on.

His Honour gave a good example. His Honour said:

For example, if a witness were to say that it was broad daylight in Hobart at 2 am on a particular day such evidence would be incapable of being accepted and therefore would be required to be disregarded for the purposes of deciding whether the evidence was sufficient to commit. Beyond such clear cases it is not the function of a committing magistrate to weigh or assess evidence by reference to its character or credibility.

In Murphy's Case his Honour Justice Toohey also said:

The questions posed are the sort of questions that arise day by day in the conduct of criminal trials, requiring ruling from the presiding judge. The need for a trial judge to take particular care to ensure that no injustice arises where a defendant faces a joinder of charges is an attribute of many trials . . . But it would be quite wrong for this Court -

his Honour was referring to the Federal Court -

to attempt to place itself in the position of the trial judge and to make a decision by reference to what the trial judge may or may not do in response to such an application.

His Honour effectively said no court is entitled to play the role of a trial judge, except the trial judge.

Your Honours, four things in a nutshell: evidence excluded at the committal were not hearsay, for example, documents signed by the defendants themselves. It is not a function of a committing magistrate to apply hearsay argument and exclude evidence. In support, section 59 of the Evidence Act says hearsay is "not admissible to prove the existence of a fact", but hearsay still can be admitted to establish the fact. Evidence of service signed by the accused was sufficient. Evidence of a state of mind of accused. However, this is a matter for a jury and trial judge. If after actus reus was established his Worship was obliged to commit the defendants for trial. That is the issue, your Honours.

Why special leave should be granted, there are two reasons: this is the first time a case with these issues reached the High Court; and the reason two, the High Court's opinion on these issues is necessary for the development of common law in this country. That is my argument.

GLEESON CJ: Thank you. We do not need to hear you, Mr Buchanan.

We have heard, sequentially, two applications for special leave to appeal. Each is an application for special leave to appeal against a decision of the Court of Appeal of the Supreme Court of New South Wales constituted by the President and Justice Powell. The decisions were given on 12 December 2000. The matters with which we are concerned are, respectively, matter No S3 of 2001 and No S4 of 2001.

In each matter, having read the written submissions and heard the oral submissions of the applicant, the Court is of the view that there is no reason to doubt the correctness of the decision of the Court of Appeal and, for that reason, in each case, the application for special leave to appeal is dismissed. The applicant, in each case, must pay the costs of the respondent.

AT 11.27 AM THE MATTERS WERE CONCLUDED