Zahed v Director of Public Prosecutions (NSW)

1. [1]

   Tarek Zahed (the plaintiff) seeks leave to appeal against an order made by Ms Swain LCM on 28 February 2023 extending the time for the filing of a charge certificate. The order was made pursuant to s 67(3)(b) of the Criminal Procedure Act 1986 (NSW) (“CP Act”). The application for leave is brought under s 53(3)(a) of the Crimes (Appeal and Review) Act 2001 (NSW) (“CARA Act”).

2. [2]

   If leave is granted, the plaintiff's proposed grounds of appeal are:

   1. (1)

      In determining that it was in the interests of justice to extend the time for the filing of a charge certificate, her Honour erred in concluding that the Director of Public Prosecutions did not have the power to require the production of documents which are the subject of a statutory publication restriction.

   2. (2)

      In determining that it was in the interests of justice to extend the time for the filing of a charge certificate, her Honour erred in taking into account "community expectations".

3. [3]

   The first ground of appeal raises a question concerning the interpretation of s 15A(7) of the Director of Public Prosecutions Act 1986 (NSW) (“DPP Act”). It also requires consideration of the ways that the provision interacts with, and can be read in conformity with, s 45 of the Crime Commission Act 2012 (NSW) (“CC Act”).

4. [4]

   The plaintiff’s case also requires consideration of the current procedure by which an accused person might be committed for trial: CP Act, Ch 3, Div 1-6, 8. Those provisions, which introduced significant changes in the law relating to committals, were considered by Basten JA in Landrey v Director of Public Prosecutions (NSW) (2022) 406 ALR 613; [2022] NSWCA 211 at [17]-[31]. The current procedures place enormous responsibility on the Director of Public Prosecutions (“DPP” or “the Director”) and their lawyers and place a heavy burden on prosecutors to determine whether an accused person should be committed to stand trial. The process of charge certification is a critical part of that process. For better or worse, the previous system under which a magistrate had jurisdiction to determine whether the evidence was sufficient to justify committing an accused person to stand trial has been cast aside: see for example, and for historical purposes only, Carlin v Thawat Chidkhunthod (1985) 4 NSWLR 182 at 197-201, Grassby v The Queen (1989) 168 CLR 1; [1989] HCA 45 at 5-6 (Deane J), Saffron and Allen v Director of Public Prosecutions (1989) 16 NSWLR 397 at 403-404 and the observations of Simpson AJA in Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17 at [7]-[8].

5. [5]

   The factual circumstances of the present case bring into sharp focus the substantial obligation on the Director to act promptly in committal proceedings and to comply with the time limits prescribed by the CP Act. In particular, the case demonstrates that the requirement for the Director to file a charge certificate within six months of the first return date (s 67(2)(b)) (or such earlier date as the Local Court orders) is critical for the expeditious and efficient progress of criminal cases through the Local Court. In the present case, the plaintiff, who is presumed by law to be innocent, has been in custody, with bail refused, for a period exceeding seven months. It is hardly surprising that, when the Director sought to extend the date for the filing of the charge certificate, those representing Mr Zahed opposed the application.

6. [6]

   In the present case, the "secret" nature of investigations and hearings conducted by the New South Wales Crime Commission (“Crime Commission”), and the associated restrictions on the release of information, has done some violence to the expeditious progress of this matter.

Leave to appeal

1. [7]

   Section 53(3)(a) of the CARA Act allows an appeal to this Court against “an order … made by a Magistrate in relation to [a person] in any committal proceedings”, but “only on a ground that involves a question of law alone, and only by leave”.

2. [8]

   The Director conceded that each of the grounds of appeal have been formulated in such a way that they involve questions of law alone.

3. [9]

   I am satisfied that leave to appeal should be granted given the following matters:

   1. (1)

      The case involves an important question of statutory interpretation and the inter-relationship between two statutes.

   2. (2)

      The plaintiff has been in custody for over seven months.

   3. (3)

      As will be seen, lawyers representing the Director have conceded in bail hearings, that on the voluminous brief of evidence that has been served to this point, they cannot certify the offences with which the plaintiff was charged on 28 August 2022 (more than seven months ago).

   4. (4)

      If the appeal is upheld, one possible outcome is that the plaintiff would be discharged.

Procedural history

1. [10]

   I will first set out a chronology of the litigation, insofar as it is currently known to the Court:

2. [11]

   During the hearing, I became aware of further dates and information relevant to the chronology and progress of the case.

3. [12]

   After Magistrate Miller heard submissions from the plaintiff and the Director on 28 February 2023, his Honour adjourned the proceedings to a date (apparently not known by the parties), to allow other people interested in the outcome of the s 45(5) application to make submissions in the absence of the parties. This procedure provides procedural fairness to parties not involved in the criminal proceedings but who may be affected by the disclosure of information hitherto protected by non-publication orders under the CC Act.

4. [13]

   Magistrate Miller is yet to make a decision, but, as I understand it, the s 45(5) application is listed on 24 April 2023. It is anticipated that final submissions from the Director and the plaintiff will be made on that date, and it is expected that a decision under s 45(5) will be made that day or soon thereafter. The Director indicated that if the s 45(5) application succeeds the prosecution will need about 3 weeks to decide which, if any, charges can be certified.

Some observations concerning the facts and circumstances of the decision made in the Court below

1. [14]

   There are a few things that should be noted before embarking on a consideration of the hearing before Magistrate Swain and the plaintiff’s grounds of appeal.

2. [15]

   The first is that during the hearing of the plaintiff’s bail application on 2 February 2023, the Prosecutor made a concession in the following terms:

3. [16]

   The implication was that, in the absence of the material expected to be released by the Crime Commission, the Director could not certify the charges.

4. [17]

   Secondly, when the matter was before Magistrate Swain on 28 February 2023, the plaintiff referred to the concession made on the bail application by referring to the "acknowledgment by the Director by the charge certifier that the Crown does not have a viable case at present in the absence of this 45 material”. Pressed on that issue, the solicitor then appearing for the Director said:

5. [18]

   The reference to “the evidence of the witnesses” concerned the material sought to be obtained from the Crime Commission pursuant to the orders under s 45(5). The reference to “my affidavit” is to the following parts of the solicitor’s affidavit dated 23 February 2023:

6. [19]

   I make those observations merely to indicate that the matter is unusual. The police who arrested and charged the plaintiff presumably did so in the belief that there was evidence capable of establishing the crimes of murder and aggravated kidnapping. However, despite the service of some 17 volumes of evidence, those representing the Director were unable to certify the charges by reference to that very large body of material.

7. [20]

   One further observation, before embarking on an analysis of the Magistrate’s reasons and the grounds of appeal impugning those reasons, is that the matter did not come before her Honour until around 3:15pm on 28 February 2023. The judgment under appeal was delivered after 4.30pm and the reasons were given ex tempore.

8. [21]

   It is well established that where a judgment is delivered extemporaneously, and in such pressing circumstances, a court reviewing the decision should not approach the appeal in an unduly critical and technical way: see, for example, Director of Public Prosecutions v Sadler [2013] NSWSC 718 at [78] and the cases cited therein. There are many cases to similar effect. Having said that, the ex tempore reasons of a Magistrate or other judicial officer are not immune from criticism and remain amendable to scrutiny and successful appellate review.

9. [22]

   I propose to deal first with ground 2, largely because the matters I mentioned in the last two paragraphs have resonance in dealing with the submissions made under that ground.

Ground 2: In determining that it was in the interests of justice to extend the time for the filing of a charge certificate, her Honour erred in taking into account “community expectations”.

1. [23]

   The second ground of appeal contends that the learned Magistrate erred by taking into account "community expectations” in relation to the prosecution of serious matters. The submission is, in essence, that the concept of community expectations in the present context was devoid of any meaningful content.

2. [24]

   The passage subject to criticism was as follows, with the impugned portioned italicised:

3. [25]

   The plaintiff submits correctly that the expression “community expectations” has been criticised for its lack of precision. It has been described as “inherently vague and subjective”: Director of Public Transport v XFJ [2010] VSC 319 at [106]. In the Supreme Court of Canada, McLachlin CJ said in R v Labaye [2005] 3 SCR 728 at [18]:

4. [26]

   Placing those general observations into the context of the present case, it may be that some members of the community would have expectations that a prosecutor should be given some leeway in gathering evidence in a case involving an allegation of murder, while other members of the same community might hold a prosecutor to strict account when the legislation places a six-month time limit on the certification of the charge and the accused languishes in custody. In written submissions, the plaintiff contrasted the observations of the High Court in two unrelated decisions. In Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 at 396, Mason CJ, Deane and Dawson JJ referred to the “legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime”, whereas in Jago v The District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46 at 33, Mason CJ said “it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged”.

5. [27]

   The use of the expression “community expectations”, and the apparent resort to reliance on what the public might expect, was unfortunate. However, the learned Magistrate did not fall into legal error in employing the phrase. In reaching that conclusion, I have read Magistrate Swain’s reasons fairly and as a whole, taking into account other things her Honour said, the context in which the phrase was employed, the repetition of several factors that were taken into account and the structure of the judgment given the urgency in which it was delivered.

6. [28]

   Reading the judgment in that way, I conclude that the reference to “community expectations” was no more than a further enunciation of the seriousness of the plaintiff’s charges and the relevance of the public interest in the prosecution of serious offences. I do not accept the plaintiff’s reliance on the use of the word “also” (italicised and emboldened in the passage set out at [24]), as indicating that her Honour was giving separate consideration to community expectations and that this was divorced from, or different to, the relevance of the seriousness of the charges to the ultimate question of what was in the “interests of justice”. This close textual parsing of the judgment is contrary to the proper approach of reading the reasons fairly as a whole and allowing for the urgency with which the decision was made.

7. [29]

   I would reject ground 2.

Ground 1: In determining that it was in the interests of justice to extend the time for the filing of a charge certificate, her Honour erred in concluding that the Director of Public Prosecutions did not have the power to require the production of documents which are the subject of a statutory publication restriction.

1. [30]

   As I said at the outset, this ground involves consideration of the interaction between s 15A of the DPP Act and of s 45 the CC Act. In the hearing below, counsel for the plaintiff submitted that it was open to the Director to make a request to the Crime Commission for disclosure of information that is currently (and was at the time of the hearing before Magistrate Swain), the subject of the s 45(5) application before Magistrate Miller. The plaintiff argued that the source of the power to obtain that information was derived from s 15A of the DPP Act.

2. [31]

   Section s 15A provides for disclosure by law enforcement and investigating officers of “all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person”. It applies to officers of the Crime Commission: DPP Act, s 3. For present purposes, the critical sub-sections are (6) and (7):

3. [32]

   The definition of “statutory publication restriction” in subs (9) includes restrictions imposed under ss 45 and 45A of the CC Act.

4. [33]

   Section 45 of the CC Act provides a regime by which evidence or information that is otherwise subject to a statutory non-publication order can be lifted. The section is in the following terms:

5. [34]

   In helpful written submissions, counsel for both parties provided extensive assistance relating to the relevant tenets of statutory interpretation, as well as a thorough history lesson concerning changes to the relevant legislation, including amendments which had been made in response to various court decisions. Two examples are amendments made in the aftermath of the cases of R v Lipton (2011) 82 NSWLR 123; [2011] NSWCCA 247 and Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20. Counsel for the DPP invited my attention to certain aspects of the second reading speeches whereby the purpose of the amending legislation was explained to the Parliament.

6. [35]

   While I do not underestimate the utility of the analysis undertaken by the parties, it is unnecessary to repeat it. The final words of s 15A(7) of the DPP Act are quite clear. They provide, by necessary implication, a power in the Director to request that the Crime Commission provides any relevant information. If such a request is made, the Crime Commission is obliged to (“must”) provide the information. Nothing in s 45 of the CC Act impacts on the power of the Director to make such a request or on the obligation of the Crime Commission to comply with such a request. The utility of such a request, in the face of s 45 of the CC Act, is another matter.

7. [36]

   This was the argument made by Mr Lange, appearing for the plaintiff, in the hearing before Magistrate Swain. The argument was not conceded by the Director in the Local Court proceedings.

8. [37]

   In providing ex-tempore reasons for allowing the Director’s application to extend the time for filing the charge certificate, her Honour said:

9. [38]

   The plaintiff asserts that this conclusion, as a matter of statutory construction was wrong and constitutes an error of law which vitiated the Magistrate’s ruling and means the exercise of the discretion under s 67(3) of the CP Act miscarried. I agree with that submission. Indeed, on the hearing of the present appeal, Senior Counsel appearing for the Director conceded the Director has the power to request material from the Crime Commission. The defendant’s written submissions included:

10. [39]

    The Director submitted to this Court – but not to the Local Court – that what I will call “the request power” exists but is a discretionary power. The submission continued that it was a reasonable exercise of the Director’s discretion not to make the request for disclosure pursuant to s 15A(7), but rather to invoke the specific regime for disclosure provided for in s 45. Cogent submissions were made as to why that was so. Those submissions, as they were put in writing, included four reasons:

11. [40]

    The argument continued that ground 1 should be rejected because the Magistrate “did not err in finding that the Director had followed the proper process by [making] an application pursuant to s 45(4)”.

12. [41]

    I am unable to accept this submission. Nothing in the Magistrate’s judgment supports a conclusion that her Honour determined the matter on the basis that the Director possessed the power to request the material under s 15A but had reasonably exercised a discretion not to use that power. On the contrary, the part of the judgment extracted above at [37] makes it plain that her Honour concluded that the Director did not possess the power to request the material from the Crime Commission. Rather, her Honour concluded that the more specific regime in s 45 required s 15A(7) of the DPP Act to be in interpreted in such a way that denied the “request power” urged by the plaintiff. Otherwise, the utility of the regime in s 45 would be compromised.

13. [42]

    I am satisfied that the learned Magistrate erred in law in finding that the DPP did not have the power to request material from the Crime Commission pursuant to s 15A of the DPP Act. I am satisfied that that was a material error for the purpose of determining whether her Honour’s discretion miscarried, even though, had she approached the matter under the correct interpretation of s 15A of the DPP Act, she may have reached the same conclusion on whether it was in the interests of justice to extend the date for the filing of the charge certificate.

14. [43]

    The Director submitted in writing:

15. [44]

    The reference to “House v The King error” is, of course, a reference to the following passage in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505:

16. [45]

    The Director submitted that the Magistrate’s error concerning the existence of the “request power” under s 15A(7) of the DPP Act was not a “material error” and relied at the hearing in this Court on Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [38]:

17. [46]

    This passage does not support the proposition to which it is directed. The final sentence is referring to the last kind of error identified in House v The King, which is sometimes referred to as “latent” error. That kind of error exists where the decision under review is so “unreasonable or plainly unjust” that the appellate court imputes error, although a precise error is not apparent on the face of the judgment under review. Ground 1 in this case is that the judge made an error of law or, in the language of House v King, “acted on a wrong principle”. Whether the Magistrate would have reached the same ultimate decision, absent the legal error, does not lead to the conclusion that the error was immaterial.

18. [47]

    The discretion under s 67(3) of the CP Act miscarried because the Magistrate acted on a wrong principle. Ground 1 must be upheld.

Disposition

1. [48]

   Section 55(3) of the CARA Act provides that the Supreme Court may determine an appeal under s 53(3) by (a) “setting aside the order and making such other order as it thinks just” or (b) “dismissing the appeal”.

2. [49]

   In circumstances where the exercise of the Magistrate’s discretion was infected by legal error, the more appropriate course is to set aside the order made by the Magistrate and either remit the matter to the Local Court to be determined according to law or to exercise the discretion afresh. The latter course is permitted by the breadth of the power to make “such other order as [this Court] thinks is just”. It is the preferable course in this case because it will result in less delay, albeit that the delay to this point has been the consequence of dual progress of the proceedings in the Local Court and the bringing of the appeal to this Court.

3. [50]

   I would commence by observing that the six-month time limit established by s 67(2)(b) of the CP Act should not be taken lightly. Six months will be, in the vast majority of cases, ample time for the prosecutor to certify, for the purpose of s 66(2)(a), that the available evidence “is capable of establishing each element of the offences”. There should be no expectation that a magistrate will exercise the power to extend the date for filing a charge certificate pursuant s 67(3). While the “interests of justice” encompass a wide variety of factors, Magistrates will expect the Prosecutor to provide good and cogent reasons why charge certification cannot occur within that specified statutory time frame. This is particularly so where, as here, an accused person is in custody pending the resolution of the criminal proceedings or in cases where an accused person is subject to stringent bail conditions.

4. [51]

   Having said that, the circumstances prevailing in this case are somewhat unusual. The Director was notified on 21 October 2022 and 7 November 2022 that potentially relevant information or evidence was in the possession of the Crime Commission and acted with reasonable speed to obtain that information or evidence. It is true that no request was made under s 15A(7) of the DPP Act, but the Director asked that the publication restriction be varied on 17 November 2022 and, when that request was rejected, filed an application under s 45(4) and (5) of the CC Act on 30 November 2022. The application under s 45(4) was heard in the Local Court on 30 November 2022. It was possible for the Director to have acted with more alacrity, but a fair assessment is that her officers responded diligently and promptly.

5. [52]

   Further, disclosure of the information pursuant to a request under s 15A(7) may have given rise to practical (and legal) limitations. As the Director submitted, s 45(3) of the CC Act criminalises publication of material subject of a direction under s 45(1). The plaintiff’s answer to this, which involved the suggestion that the Director could use her powers of delegation under s 33 of the DPP Act, was unpersuasive, particularly when Kings Counsel was pressed to identify precisely which of the Director’s powers would be the subject of such a delegation.

6. [53]

   Two related matters militating in favour of a finding that it is in the interests of justice to extend the date for charge certification are (i) the nature of the charges under contemplation and (ii) the size of the police brief (namely being 17 volumes). Neither matter, by itself, would justify a finding that it is in the interest of justice to extend the period for charge certification beyond six months. Six months would ordinarily be enough time to certify a murder charge and an aggravating kidnapping charge by reference to a brief of that size. However, the seriousness of the charges is a relevant consideration, in that it is in the interests of justice that crimes of such seriousness are prosecuted properly and with all available information considered by the prosecuting authority.

7. [54]

   The Prosecutor’s concessions that there is, or may be, “no case” in the absence of the material sought from the Crime Commission, is a neutral factor. On the one hand, Mr Zahed should not remain in custody if these are the only extant charges against him and there is limited, or no, admissible evidence against him. On the other hand, the absence of other evidence highlights the potential importance of the material that may be available if an order under s 45(5) is made by Mr Miller LCM later this month.

8. [55]

   An extremely important factor militating against extending the time for charge certification is that the plaintiff remains in custody, seemingly and only because of the present allegations. He languishes while two instruments of the State (the DPP and the Crime Commission) seek the intervention of a third (the Local Court) to determine what, if any, evidence exists to justify the charges and his ongoing incarceration. This is a substantial matter in favour of refusing the application to extend the date for filing the charge certificate.

9. [56]

   I have given that last matter significant weight in determining where the interests of justice lie.

10. [57]

    However, in the end, I am satisfied that it is in the interests of justice to make the order under s 67(3) of the CP Act at least for a short time. Because events have continued to develop, and some time has passed since the matter was before Magistrate Swain, the order I will make will result in a further extension of time. The Director has asked for three weeks beyond the date on which it is expected that Mr Miller will determine the s 45(5) application. I have opted for two weeks on the basis that this should be sufficient time for the Director and her officers to decide whether the charge can, or cannot, be certified.

Publication of this judgment

1. [58]

   This judgment will not be published on Caselaw (or otherwise than to the parties and, via the parties or the Registrar, to the Local Court) until the Crown Solicitors Officer (on behalf of the Police Commissioner and/or the Crime Commission) advises whether there is any application to redact portions of the judgment in accordance with the approach taken in advance of the hearing and during the hearing. (Following consultation between my Associate and the CSO this should be facilitated 4:00pm on the day the judgment is delivered.)

Costs

1. [59]

   I will allow the parties seven days to attempt to agree on the appropriate order for costs, if any, and a further seven days to file written submissions of no more than five pages on the question of costs.

Orders

1. [60]

   Accordingly, I make the following orders:

   1. (1)

      Grant leave to appeal under s 53(3) of the Crimes (Appeal and Review) Act 2001 (NSW).

   2. (2)

      Allow the appeal.

   3. (3)

      Pursuant to s 55(3)(a) of the Crimes (Appeal and Review) Act 2001 (NSW) set aside the order made by Magistrate Swain on 28 February 2023.

   4. (4)

      In lieu thereof, make an order under s 67(3) of the Criminal Procedure Act 1986 (NSW) extending the time for the filing and service of a charge certificate until 8 May 2023.

   5. (5)

      The matter is listed before the Burwood Local Court on 8 May 2023.

   6. (6)

      The parties should strive to reach agreement as to the appropriate order for costs (if any) and, if agreement is not reached, submissions of no more than 5 pages on the question of costs are to be filed with my Associate on or before 4:00pm on 28 April 2023.

   7. (7)

      The parties have liberty to contact my Associate to set a timetable relating to the issue of costs.