Published by Geoff Harrison | 23 September 2023
The Director of Public Prosecutions (DPP) can elect to proceed on indictment in respect of both Table 1 and Table 2 offences and the time for making such an election is set out in s263 of the Criminal Procedure Act 1986 ('the Act'). However, given that the Director has the authority to file ex-officio indictments in the District Court the timing is somewhat nugatory: see Johnston v DPP below.
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Extracted Legislation:
CRIMINAL PROCEDURE ACT 1986 - SECT 263
Time for making election
(1) An election to have an offence dealt with on indictment must be made within the time fixed by the Local Court.
(2) An election may, with the leave of the Local Court, be made after the time so fixed if the Court is satisfied that special circumstances exist.
(3) However, an election may not be made after the following events--
(a) in the case of a plea of not guilty--the commencement of the taking of evidence for the prosecution in the summary trial,
(b) in the case of a plea of guilty--the presentation of the facts relied on by the prosecution to prove the offence.
(4) An election may be made on behalf of a corporation by a person appearing as a representative of the corporation.
(5) The jurisdiction of the Local Court under this section may be exercised by a registrar.
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Johnston v Director of Public Prosecutions (NSW) [2021] NSWSC 333 (9 April 2021)
Supreme Court
New South Wales
Case Name:
Johnston v Director of Public Prosecutions (NSW)
Medium Neutral Citation:
[2021] NSWSC 333
Hearing Date(s):
23 March 2021
Date of Orders:
09 April 2021
Decision Date:
9 April 2021
Jurisdiction:
Common Law
Before:
Cavanagh J
Decision:
(1) The summons is dismissed.
(2) The plaintiff is to pay the defendant’s costs.
Catchwords:
CRIMINAL PROCEDURE – Election – Time limit – Where in the case of a plea of guilty the presentation of the facts relied on by the prosecution to prove the offence had already occurred – s263(3) of the Criminal Procedure Act 1986 (NSW)
CRIMINAL PROCEDURE – Ex officio indictment
Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Criminal Procedure Regulation 2017 (NSW)
Director of Public Prosecutions Act 1986 (NSW)
Inclosed Lands Protection Act 1901 (NSW)
Interpretation Act 1987 (NSW)
Supreme Court Act 1970 (NSW)
Cases Cited:
AAI Ltd t/as AAMI v Chan [2021] NSWCA 19
Director of Public Prosecutions (NSW) v PM (2006) 67 NSWLR 46; [2006] NSWCCA 297
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44
Kostrzewa v Southern Electric Authority of Queensland (1969) 120 CLR 653; [1969] HCA 32
Master Education Services Pty Limited v Ketchell (2008) 236 CLR 101; [2008] HCA 38
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Potier v Magistrate Maloney & Ors [2005] NSWSC 336
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389; [1949] HCA 33
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
Ross v The Queen (1979) 141 CLR 432; [1979] HCA 29
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
Category:
Principal judgment
Parties:
Peter Phillip Johnston (Plaintiff)
Director of Public Prosecutions (NSW) (First Defendant)
The Local Court of New South Wales (Second Defendant)
Representation:
Counsel:
T D Anderson (Plaintiff)
E Balodis (First Defendant)
Solicitors:
Legal Aid Commission of NSW (Plaintiff)
Solicitor for Public Prosecutions (NSW) (First Defendant)
File Number(s):
2021/10090
Publication Restriction:
None
JUDGMENT
1. This is an application for judicial review of a decision of Magistrate Horan of the Local Court on 27 November 2020.
2. The matter involves a consideration of the circumstances in which the first defendant, the Director of Public Prosecutions (NSW) (“the Director”) may elect for a person to be tried on indictment, having regard to s 263 and s 8(2) of the Criminal Procedure Act 1986 (NSW) (“CPA”).
3. By way of an amended summons filed on 4 March 2021, the plaintiff, Peter Phillip Johnston, seeks:
(1) An order in the nature of certiorari pursuant to s 69(3) of the Supreme Court Act 1970 (NSW) (“the SCA”) quashing the decision of Magistrate Horan on 27 November 2020 in the Local Court at Burwood, permitting the Director to elect for him to be tried on indictment during the hearing of the summary sentence proceedings for the same matter.
(2) An order in the nature of mandamus remitting the matter to the Local Court to be dealt with according to law, finalising the sentence proceedings which commenced on 1 October 2020.
4. During the hearing the plaintiff amended the orders sought by deleting the words commencing “finalising...” in order 2.
5. As set out in the amended summons, the decision which the plaintiff seeks to have reviewed is the decision of the learned Magistrate to adjourn the sentencing hearing in respect of the plaintiff after it had commenced for the purposes of allowing the Director to proceed against the plaintiff by way of indictment in the District Court.
6. The grounds on which the plaintiff seeks judicial review are also set out in the amended summons, being that:
(1) there was an error of law on the face of the record and/or jurisdictional error in that her Honour wrongly found that the Director had elected to have the matter proceed on indictment on 22 September 2020 despite not having advised either the Court or the plaintiff of that election contrary to s 263 CPA; and
(2) there was an error of law on the face of the record and/or jurisdictional error by her Honour in relying on the Director of Public Prosecutions Act 1986 (NSW) (“the DPP Act”) to support her conclusion that the Director had elected to proceed on indictment on 22 September 2020.
7. The Director filed a response to the original summons on 1 March 2021. He opposes the orders sought by the plaintiff on the grounds set out in the response which include that:
(1) On 19 February 2021 he directed that an ex officio indictment be filed against the plaintiff for one count of sexually touching contrary to s 61KC(a) of the Crimes Act 1900 (NSW) (“the Crimes Act”);
(2) An ex officio indictment was filed in the District Court on 26 February 2021;
(3) There is thus no utility in these proceedings as the Director will be proceeding by way of indictment in the District Court; and
(4) Further, s 17 and the third schedule of the SCA exclude proceedings on indictment in the District Court from the application of the SCA and the Supreme Court Rules.
Background facts
8. On 16 September 2020 the plaintiff was arrested and charged with an offence pursuant to s 61KC(a) of the Crimes Act being the offence of sexually touch another person without consent. This is a Table 2 offence. At the same time, the plaintiff was charged with an offence under s 4(1)(b) of the Inclosed Lands Protection Act 1901 (NSW) which is neither a Table 1 nor Table 2 offence.
9. The offences allegedly occurred on 7 September 2020.
10. At the time of the offending the plaintiff was on parole. His parole was revoked. He remains in custody.
11. The plaintiff first appeared before the Local Court at Burwood on 17 September 2020. On a further appearance on 1 October 2020 he entered a plea of guilty to both charges before Magistrate Williams. The matter was then transferred to Magistrate Horan for sentencing.
12. After the commencement of sentencing submissions, her Honour referred to the need for a sentencing assessment report and a Static-99 report. There followed an exchange about s 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the CSPA”).
13. As set out in s 58, the Local Court may not impose a new sentence of imprisonment to be served consecutively with an existing sentence of imprisonment if the date on which the new sentence would end is more than 5 years after the date on which the existing sentence began.
14. As is evident from the transcript, her Honour had some concerns about the sentencing options having regard to s 58. Following an exchange with the prosecutor and the solicitor for the plaintiff, she adjourned the matter to 2 October 2020 to consider the issue further.
15. On recommencement of the sentencing hearing on 2 October 2020, her Honour suggested that she would be critical of the prosecution having regard to the severity of the offending and the prosecution’s failure to do something about it, again having regard to s 58.
16. The matter was then adjourned but, later in the day, the sentencing recommenced at which time the prosecutor informed the Court and the plaintiff for the first time that there had been an administrative error and that the Director had accepted the matter. The statement by the prosecutor was correct.
17. As set out in an affidavit of the Police prosecutor affirmed 19 February 2020, he tendered the facts and record on the sentencing hearing prior to properly scrutinizing the front of the prosecutor’s file. He did not observe the notation on the file that the matter had been referred to the Director. He says that, if he had observed this, he would not have tendered the facts and record. It was an inadvertent error and accordingly he did not advise the Court that the Director intended to elect to proceed by way of indictment.
18. There is now an ex officio indictment before the District Court which was filed on 26 February 2021. The Director has informed the plaintiff that the proceedings in the Local Court will be withdrawn, although that has not yet occurred.
19. There is no dispute that an offence under s 61K is a Table 2 offence. It is to be dealt with summarily by the Local Court unless the Director elects to have the offence dealt with on indictment.
20. In the Local Court the prosecutor accepted that neither the Court nor the plaintiff had been informed about the election but maintained that the Director had elected on 22 September 2020. As such, it was the Police prosecutor’s submission to the Local Court that the election was made prior to the plea of guilty being entered and the presentation of the facts.
21. The plaintiff maintained that the election was only made when the prosecutor informed the Court and the plaintiff of the decision, by which time it was then too late, having regard to the mandatory language used in s 263(3) of the CPA, it being after presentation of the facts on a guilty plea.
22. In any event, on 2 October 2020, the Magistrate again adjourned the matter to enable the parties to serve submissions in support of their respective positions. There was a further hearing on 20 October 2020 and her Honour gave judgment on 27 November 2020. She accepted that the election had been made on 22 September 2020 at which time the Director communicated his decision to the Police prosecutor. She specifically found that:
“... section 263(3) is not offended by the matter now proceeding by way of an election. Notwithstanding the fact that this was not communicated to the Court on 1 October 2020 prior to the plea of not guilty being entered...” (errors in transcript corrected)
The parties’ positions in this Court
23. The plaintiff submits that the Magistrate erred having regard to the proper construction of s 263 CPA. The plaintiff submits that the election to have the offence dealt with on indictment was not made within the time fixed by the Local Court. The plaintiff submits that the Magistrate erred in finding that an election was made on 22 September and thus before he entered a plea of guilty and the presentation of the facts on sentence.
24. This is said to be an error on the face of the record and/or jurisdictional error. In the circumstances, the plaintiff submits that the matter should be remitted to the Local Court to be dealt with according to law and the sentence proceedings commenced on 1 October 2020 should be finalised in the Local Court.
25. The plaintiff also submits that the Director is not now entitled to file an ex officio indictment in the District Court (as it did on 26 February 2021) because the proceedings in respect of the charges against the plaintiff have effectively come to an end by the plaintiff’s plea of guilty in the Local Court and the tendering of the facts on sentence.
26. Whilst the plaintiff accepts that the Director has the power to issue an ex officio indictment under the DPP Act, he submits that the Director does not have the power to do so in the circumstances of this matter.
27. Indeed, the plaintiff submits that the filing of an ex officio indictment is an abuse of process which will be taken up in separate proceedings in the District Court. The plaintiff submits that the ex officio indictment has been filed to prevent this Court from dealing with, what the plaintiff describes, as the substantive issue.
28. The Director did not really address what the plaintiff describes as the substantive issue. The Director’s position is that there is now an ex officio indictment before the District Court and it has already indicated that the proceedings in the Local Court will be withdrawn.
29. He submits that there is no utility in now deciding whether the decision of the Magistrate involved either error of law on the face of the record or a jurisdictional error. Further, he submits that the plaintiff has already indicated that he will be seeking to challenge the ex officio indictment in the District Court as an abuse of process and that is the proper place for it to do so.
30. It is submitted that having regard to s 17 of the SCA and the Third Schedule of that Act, this Court has no jurisdiction to review decisions of the District Court in its criminal jurisdiction now that a bill of indictment has been filed[1].
Nature of the relief sought
31. The orders sought are in the nature of certiorari quashing the decision of Magistrate Horan on 27 November 2020. The plaintiff seeks relief under s 69 of the SCA.
32. Sections 69(3) and 69(4) are in the following terms:
“69 Proceedings in lieu of writs
...
(3) The jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes, if the Court is satisfied that the ultimate determination of a court or tribunal in any proceedings has been made on the basis of an error of law that appears on the face of the record of the proceedings—
(a) jurisdiction to quash the ultimate determination of the court or tribunal, and
(b) if the Court determines that, as a matter of law, only one particular determination should have been made by the court or tribunal, jurisdiction to make such judgment or orders as are required for the purpose of finally determining the proceedings.
(4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.”
33. As set out in s 69(4) the face of the record includes the reasons expressed by the Court for its ultimate determination. Applying the wrong statutory test may be an error of law on the face of the record and jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82] (per McHugh, Gummow and Hayne JJ).
34. The plaintiff submits that the Magistrate has misconstrued the legislation or applied the wrong statutory test. Little attention was paid to the nature of the decision that was the subject of the claim to review but it must be the decision that is set out in the Magistrate’s reasons as follows:
“... Given that the DPP had elected to proceed on indictment the Local Court has no jurisdiction to deal with these matter summarily (sic). And the sentence cannot proceed in the Local Court. I therefore decline to proceed to sentence the defendant in the Local Court and the matter will now proceed on election by the DPP in the usual manner. In accordance section 61 of the Criminal Procedure Act brief service orders are required to be made.”
35. In AAI Ltd t/as AAMI v Chan[2] Leeming JA observed that misconstruing a section may disclose an error of law on the face of the record. His Honour went on to say:
“45. This Court has previously deprecated the conflation of jurisdictional error and error of law on the face of the record. In AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen at [45], Meagher, Simpson and Payne JJA said:
‘As has been repeatedly emphasised, the distinction is important, as a claim for relief based on jurisdictional error may be established by any admissible evidence relevant for that purpose while a claim for relief based upon an error of law within jurisdiction must identify the error ‘on the face of the record.’
46. The reference to ‘repeatedly emphasised’ reflected what has been said for many years: see (without seeking to be exhaustive) Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 at [11] and [19], Pham v NRMA Insurance Ltd [2014] NSWCA 22; 66 MVR 152 at [24] and Ali v AAI Ltd [2016] NSWCA 110; 75 MVR 502 at [33].
47. Further, ‘error on the face of the record’ is at best an elliptical formulation of the ground of judicial review. True it is that it may be a convenient shorthand, as it was in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 186-187; [1995] HCA 58. But the formulation sanctioned by centuries of use is ‘error of law on the face of the record’. A mere error of fact which is patent on the face of the reasons for a decision does not render the decision liable to be set aside in proceedings by way of judicial review....”
36. Although the sentence proceedings were part-heard, the Magistrate declined to proceed with sentence on the basis that she had no jurisdiction to deal with the matter summarily. The plaintiff seeks to quash this decision. The reasons for that decision include her Honour’s construction of the relevant legislation.
37. It is important to note that any grant of relief by way of certiorari is discretionary: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [34]–[60] per Gaudron and Gummow JJ.
38. One reason why the Court may not exercise a discretion to grant relief is that the relief would be of no practical utility. Another reason is that there may be a right of appeal to another Court which provides a more satisfactory remedy[3].
39. Finally, it is important to emphasise that certiorari will only be available in respect of decisions which determine questions affecting rights. It is not available in respect of a decision which is merely advisory or made at a preliminary stage of a decision-making process[4].
40. At one stage, the plaintiff appeared to be suggesting that I should be issuing some form of advisory judgment. I did not take this to mean that the plaintiff was suggesting that the Magistrate’s decision in its terms was advisory. The Magistrate’s decision was to decline to proceed with the sentencing proceedings in the summary jurisdiction. She did so, having regard to her view that the election to proceed by way of indictment was made on 22 September 2020. That view was based on her construction of the relevant legislation.
41. In my view, the decision is amenable to judicial review pursuant to s 69 of the SCA.
Determination
42. The Director accepts that there was an administrative error by the Police prosecutor which resulted in neither the Court or the plaintiff being informed of the Director’s decision. It was not until after the plea of guilty and the facts being tendered that the Court and the plaintiff was so informed.
43. Section 263 of the CPA specifies the time for making an election. Section 263 is in the following terms:
“Time for making election
(1) An election to have an offence dealt with on indictment must be made within the time fixed by the Local Court.
(2) An election may, with the leave of the Local Court, be made after the time so fixed if the Court is satisfied that special circumstances exist.
(3) However, an election may not be made after the following events—
(a) in the case of a plea of not guilty—the commencement of the taking of evidence for the prosecution in the summary trial,
(b) in the case of a plea of guilty—the presentation of the facts relied on by the prosecution to prove the offence.
(4) An election may be made on behalf of a corporation by a person appearing as a representative of the corporation.
(5) The jurisdiction of the Local Court under this section may be exercised by a registrar.”
44. Section 263 is contained within Ch 5 of the Act.
45. As set out in s 261, if no election is made in accordance with Ch 5, an indictable offence listed in Table 1 or Table 2 is to be dealt with summarily in accordance with the Act and any other relevant law, as if it were a summary offence.
46. As set out in s 262, if an election is made in accordance with Ch 5, an indictable offence listed in Table 1 or Table 2 is to be dealt with on indictment in accordance with the relevant provisions of the Act and any other relevant law.
47. I agree with the plaintiff that s 263 contains language of a mandatory nature. As set out in s 263(1), an election must be made within the time fixed by the Local Court. The Local Court Practice Note Comm 2 provides that an election must be made no later than 14 days prior to the allocated hearing date and that following a plea of guilty and on the prosecutor’s application, an adjournment of two weeks would be granted to consider whether an election should be made. In those circumstances, a statement of facts is not to be tendered. The Practice Note was not complied with.
48. However, s 263(2) confers a discretion to grant leave to permit an election (not made within the time fixed by the Local Court), if the Court is satisfied that special circumstances exist.
49. Section 263(3) then qualifies that discretion in that an election may not be made after either of the events set out in s 263(3)(a) or (b). That is, in the case of a guilty plea, despite s 263(2), an election may not be made after the presentation of the facts relied on to prove the offence.
50. The question which arises in this matter is thus when the election was made. The Magistrate accepted that the election was made on 22 September 2020, being before the presentation of the facts on the guilty plea.
51. Section 266 provides for the making of regulations in the following terms:
“Regulations
(1) Regulations may be made for or with respect to elections under this Chapter.
(2) In particular, regulations may be made for or with respect to the following–
(a) the form and manner in which an election is to be made,
(b) the form and manner in which the withdrawal of an election is to be made,
(c) the notification of the making or withdrawal of an election,
(d) the form and contents, and the service, of briefs of evidence and criminal records.”
52. In particular, as set out under s 266(2)(a), regulations may be made for or with respect to the form and manner in which an election is to be made. “Manner” is a word of ordinary usage and meaning. It requires no explanation.
53. Regulation 117(2) of the Criminal Procedure Regulation 2017 relates to the form and manner in which an election may be made. It is the following terms:
“Election not to have indictable offence dealt with summarily
(1) ...
(2) For the purposes of section 266(2)(a) of the Act, an election may be made orally to the Local Court or by filing a written notice with the Court.
(3) ...”
54. Thus, for the purposes of s 266(2)(a) of the Act, an election may be made orally to the Local Court or by filing a written notice with the Court. On the face of reg 117(2), it is a regulation made for the purposes of s 266(2)(a). It is thus a regulation as to the form and manner in which an election is to be made.
55. As is often observed[5], the starting point for ascertaining the meaning of a statutory provision is the text, albeit, regard must also be had to its context and purpose. The provisions under the statute are to be given a construction which will render them harmonious[6].
56. The same principles apply to the interpretation of regulations. Further, the regulation should be construed in the context of the legislation under which it is enacted[7]. As identified in s 11 of the Interpretation Act 1987 (NSW), words used in the regulations should be given the same meaning as in the enabling legislation.
57. In Hall v R[8], the Court of Criminal Appeal considered an appeal with respect to a decision by a Magistrate to grant leave to the prosecutor under s 263(2) CPA to elect out of time to have certain offences dealt with on indictment. The case concerned an issue relating to the grant of leave under s 263(2) and not the application of s 263(3).
58. However, the Court considered (per Johnson J at [39]-[62]) that there was some utility in making observations concerning the proper construction and application of s 263(2) CPA. His Honour observed at [44]:
“The statute does not state what is required for s.263 ’election’. There is no statement that an election is not made until it is communicated to the Local Court and/or the defendant. At the least, however, there is an implied requirement that an election will be communicated promptly to the defendant and the Local Court, to allow it to be noted that compliance with s.263(1) has occurred.”
59. The question which arose in Hall related to the circumstances in which an extension under s 263(2) might be given. The issue in this matter is at what point an election is made for the purposes of s 263.
60. Plainly, his Honour’s observation that there is no statement (in s 263) that an election is not made until after it is communicated to the Local Court or the defendant is correct. Further, there may be an implied requirement that an election be communicated promptly, but that still leaves open the question of when an election is made for the purposes of the proper application of s 263(3).
61. That is, has the election been made (as that term should be understood for the purposes of s 263), even before it is communicated to the Local Court or the defendant?
62. In my view, the answer is to be found by the harmonious and consistent construction of the section and the regulation[9].
63. Regulation 117(2) is a regulation which prescribes the form and manner in which an election may be made. Construing reg 117(2) having regard to its text and in context does not suggest that the regulation is intended to apply only to elections made by the person charged with the offence as referred to in s 260(1), being Table 1 offences. Whilst reg 117(1) is applicable only to the person charged with the offence (as it specifies the form which must be given to that person so as to inform the person of the right to make an election), reg 117(3) relates to the withdrawal of an election. The right to make a withdrawal is set out in s 264 and applies to the party who made the election. As such, I would not read reg 117 as being limited to the manner in which the person charged might make an election.
64. Whilst the text of the regulation does not include words such as “only be made” or “must be made”, there is no reason to consider that the purpose of the regulation was merely to identify one of a number of different ways that an election may be made. The use of “may be made” should be taken to be a reference to the discretion to actually make an election rather than an indication that it may also be made in other ways not specified.
65. In my view, for the purposes of Ch 5 of the CPA, the manner in which an election may be made is that specified in reg 117(2), that is either orally to the Local Court or by filing a written notice with the Court. If it is not made in that manner, then for the purposes of Ch 5, it has not been made.
66. The Magistrate considered that the election was made when the Director advised the Police prosecutor nine days before the plea of guilty, even though that decision was not communicated to the Court or the defendant until after presentation of the facts. In my view, her Honour erred in her construction of the legislation and that error informed her decision.
67. However, that does not necessarily entitle the plaintiff to the relief he seeks. Indeed, in my view, there is now no practical utility in granting relief and making the orders the plaintiff seeks and I should exercise my discretion not to do so. I say this for a number of reasons.
68. An ex officio indictment has now been filed. The proceedings in the Local Court will be withdrawn. Even if I remit the matter back to the Local Court for further hearing according to law, the proceedings will be withdrawn and the Director will be proceeding in the District Court.
69. The plaintiff’s answer to this is to submit that the proceedings in the District Court constitute an abuse of process, albeit there is no application before me (nor could there be) for any determination that the proceedings in the District Court constitute an abuse of process. The plaintiff submits that he will be pursuing that application in the District Court.
70. I am uncertain as to how the fact that the plaintiff may wish to pursue an application in the District Court on an abuse of process basis impacts upon the findings that I might make or the discretion that I have whether to grant relief. I could hardly proceed on the basis that such an application will be made and that it will be successful.
71. As was submitted by the Director, he has the power to issue an indictment pursuant to s 7(2)(c) of the DPP Act. Further, the Director’s decision to file an indictment is not reviewable by this Court.
72. In Barton v R (1980) 147 CLR 75; [1980] HCA 48 Gibbs A-CJ and Mason J said at [27]:
“The provision made by s. 5 is very different from an ordinary administrative discretion conferred by statute. The section is a self-contained provision the scope of which is unaffected by other provisions in the statute. It imposes no duty on the Attorney-General to consider whether a prosecution shall be instituted. All that the relevant part of the section does is to indicate the mode in which a criminal prosecution shall be instituted, i.e. by information in the name of the Attorney-General or other officer duly appointed for the purpose. The provision does not limit or restrict the Attorney-General in any way in the consideration which he may give to a particular case. And because the language leaves the Attorney-General at large in deciding what course he shall take, it makes his decision immune from judicial review.”
73. As set out in s 8(2) CPA, an indictment may be presented or filed whether or not the person to whom the indictment relates has been committed for trial in respect of an offence specified in the indictment.
74. The plaintiff submits that I am not dealing with the Local Court acting in its administrative capacity but rather the Local Court in its function of convicting and sentencing an offender. Thus, it is said, cases such as Potier v Magistrate Maloney and Ors [2005] NSWSC 336 (in which the Court suggested that it would be most exceptional for the Supreme Court to consider intervening[10] in respect of committal proceedings) are said to be distinguishable.
75. It is said that this case is different because this matter involves unfairness to the plaintiff who pleaded guilty and proceeded to sentence only for the prosecution to change the jurisdiction. It is the plaintiff’s position that the filing of an ex officio indictment at this stage, that is, after a plea of guilty and sentencing has commenced in the Local Court, renders nugatory s 263(3) in the sense that the mandatory language has been treated as merely aspirational.
76. The plaintiff submits that, if I remit the matter back to the Local Court for determination according to law, then the matter will proceed to sentence in the Local Court.
77. Further, if the matter is remitted back to the Local Court and it is accepted that an election was not made such that s 263(3) applied, the plaintiff suggests that it would be too late to file an ex officio indictment, as a plea of guilty has been entered and the facts have been entered. According to the plaintiff, this makes this case different from other cases relied upon by the Director.
78. Certainly, the facts of this case are different to the facts in a number of other cases but that does not provide a proper basis for distinguishing the statements of principle referred to therein. Further, although the plaintiff submits that dismissal of the proceedings in this Court would visit unfairness upon the plaintiff, the question is not determined by unfairness. The question is one of statutory construction.
79. If s 263(3) CPA prohibits the filing of an ex officio indictment in the District Court after the accused person has entered a plea of guilty in the Local Court and the facts have been presented, then there would be a purpose in remitting the matter back to the Local Court to be dealt with according to law. However, in my view, s 263(3) does not have that effect.
80. In R v Bartalesi; R v Fragassi[11] the Court of Criminal Appeal considered the old Pt 9A CPA which was in substantially the same terms as Ch 5. The accused persons had been discharged at committal but the Crown filed an ex officio indictment. The accused persons maintained that having regard to Pt 9A CPA, the Crown was prohibited from pursuing an ex officio indictment in the District Court[12]. The Court of Criminal Appeal disagreed.
81. In this matter, the plaintiff submits that Bartalesi is distinguishable on the basis that the Court was concerned with an ex officio indictment filed after the committal proceedings.
82. However, that is not really the point of the Director’s reliance on the case. In Bartalesi, Handley JA (Hodgson and Studdert AJJA agreeing)[13] identified the central question (similar to the central question in this matter):
“Are the sections referred to directions to the Local Court for the disposition of cases brought before it, or are they also directions to the prosecuting authority, and do they limit the jurisdiction of the Supreme Court and District Court?”
83. His Honour held (at p 646):
“In my opinion these directions to the Local do not limit the jurisdiction of the Supreme or District Court to deal with proceedings commenced by indictment, and do not prohibit the prosecuting authority from commencing such proceedings. This appears to be the natural and unforced construction of these provisions. However the presence of s 4 requires the adoption of this construction.”
84. Further, his Honour considered how Pt 9A and s 4 (now Ch 5 and s 8) might be reconciled as follows (at p 647):
“Accordingly Pt 9A and s 4 must be reconciled by interpretation to make them consistent. This is not difficult because in my view Pt 9A (except s 33H(2)) should be construed as directions to the Local Court to govern it in the exercise of its jurisdiction, which have no direct application to the Supreme and District Courts in the exercise of theirs. Section 4(2) can thus continue to authorise the prosecuting authority to commence proceedings by indictment in those courts as it did prior to the commencement of Pt 9A.”
85. I do not consider that his Honour’s observations are distinguishable because the case concerned an issue arising on committal[14].
86. In Iqbal v R[15] proceedings were being pursued in the Local Court. Prior to the hearing date the Director made an application pursuant to s 263(2) CPA for leave to proceed by way of indictment and to vacate the hearing date in the Local Court.
87. The Magistrate refused to grant leave. After that decision, an ex officio indictment was filed in the District Court. The accused then applied for a stay on the basis that it was an abuse of process. The District Court rejected the application and the accused person sought leave to appeal to the Court of Criminal Appeal. The appeal was dismissed.
88. Of course, as the Director concedes, it is a matter for the plaintiff whether he wishes to make application in the District Court on the basis that the indictment is an abuse of process. I am not considering that issue. Having said that, nothing said in Iqbal detracts from the observations of Handley JA in Bartalesi.
89. Chapter 5 CPA governs the procedure in the Local Court. It provides the time for the making of an election and how an election may be made. It does not prescribe or limit the power of the Director to proceed to file an ex officio indictment in the District Court.
90. Of course, in reality, if the Magistrate had determined that the election had not been made prior to the entry of the guilty plea and the presentation of the facts, then, as the matter was being determined in the Local Court, the sentencing hearing would have proceeded. It might be correct to say that the plaintiff has been disadvantaged by that error but, on the other hand, it could also be said that the error by the Police prosecutor in the first place led to the plaintiff being in this position.
91. In my view, remitting the matter to the Local Court will inevitably result in the proceedings in the Local Court being withdrawn. The plaintiff may still wish to make application in the District Court on an abuse of process basis but that is not something I am considering and I am not offering any view about the merits of such an application.
92. There is thus no practical utility in quashing the decision of the Magistrate or remitting the matter back to the Local Court.
93. In R v Commonwealth Court of Conciliation and Arbitration; Ex Parte Ozone Theatres (Aust.) Ltd[16] the Court (per Latham CJ, Rich, Dixon, McTiernan and Webb JJ) observed that there may be circumstances which may attract an exercise of discretion adverse to the applicant which might include, if a more convenient and satisfactory remedy exists, or if no useful result could ensue.
94. I cannot make a direction that the Local Court finalise the sentence proceedings. I would merely be remitting the matter to the Local Court for determination according to law.
95. Unlike when the Magistrate was considering whether an election had been made, the Director has now filed an indictment in the District Court. Whatever orders I might make, the Director will withdraw the proceedings in the Local Court and proceed in the District Court. Nothing I do will prevent the plaintiff from making application to the District Court based on an abuse of process should he wish to do so.
96. In the circumstances, there is little utility in making the orders sought by the plaintiff and remitting the matter to the Local Court. Of course, the proceedings in the Local Court remain on foot at this stage, although subject to the outcome of this matter, they will be withdrawn.
97. In all of the circumstances, I decline to make the orders sought by the plaintiff, as there would be no practical utility in doing so.
98. The summons is thus dismissed.
99. I order the plaintiff to pay the defendant’s costs.
[1] See Potier v Magistrate Maloney & Ors [2005] NSWSC 336 at [68].
[2] [2021] NSWCA 19 at [45].
[3] R v Commonwealth Court of Conciliation and Arbitration; Ex Parte Ozone Theatres (Aust.) Ltd [1949] HCA 33; (1949) 78 CLR 389 at 400; [1949] HCA 33 (per Latham CJ, Rich, Dixon, McTiernan and Webb JJ).
[4] Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149 at 159; [1996] HCA 44 (per Brennan CJ, Gaudron and Gummow JJ).
[5] See SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at 368; [2017] HCA 34 (per Kiefel CJ, Nettle and Gordon JJ).
[6] Ross v The Queen [1979] HCA 29; (1979) 141 CLR 432 at 440; [1979] HCA 29 per Gibbs J (Barwick CJ, Stephen, Mason and Aickin JJ agreeing).
[7] Master Education Services Pty Limited v Ketchell (2008) 236 CLR 101; [2008] HCA 38 at [19] (Gummow A-CJ, Kirby, Hayne, Crennan and Kiefel JJ).
[8] [2015] NSWCCA 298.
[9] Kostrzewa v Southern Electric Authority of Queensland (1969) 120 CLR 653; [1969] HCA 32.
[10] Per Johnson J at [50].
[11] (1997) 41 NSWLR 641.
[12] (1997) 41 NSWLR 641 at 645.
[13] Bartalesi at [645]
[14] See Director of Public Prosecutions (NSW) v PM (2006) 67 NSWLR 46; [2006] NSWCCA 297.
[15] See Iqbal v R [2012] NSWCCA 72.
[16] [1949] HCA 33; (1949) 78 CLR 389 at 400; [1949] HCA 33.
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