Landrey v Director of Public Prosecutions (NSW)

1. [1]

   WARD P: I agree with Basten AJA.

2. [2]

   SIMPSON AJA: I agree with Basten AJA.

3. [3]

   BASTEN AJA: The present matter, removed into this Court by the Chief Judge at Common Law, involves a challenge to the constitutional validity of Ch 3, Pt 2 of the Criminal Procedure Act 1986 (NSW), as amended by the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW) (“2017 Amendment Act”), which commenced on 30 April 2018. It is convenient to refer to the plaintiff, Geoffrey Vance Landrey, who seeks declarations of invalidity of the legislation, as “the applicant”.

4. [4]

   There was confusion as to the naming of the defendants. The defendants identified on the coversheet of the summons were “Office of the Director of Public Prosecutions NSW” and “Crown Solicitors Office of New South Wales”. The relevant legal entities, as identified in recently filed documents, are the Director of Public Prosecutions and the State of New South Wales. [1] However, the summons has not been amended, nor orders made naming the correct defendants. That should be rectified by this Court’s orders.

Nature of applicant’s case

1. [5]

   Chapter 3, Pt 2 is headed “Committal Proceedings” and extends from s 47 through to s 120. However, the focus of the challenge was s 96(1), which provides:

2. [6]

   As the applicant accepted, s 96 cannot be read in isolation: the obligation it expresses is subject to satisfaction of a number of conditions. Two steps in proceedings in the Local Court, commenced by the filing of a court attendance notice charging an offence, are critical to the applicant’s case. Working back from the obligation to commit for trial in s 96, there must be a “case conference certificate” filed in the Local Court: s 95(1)(a). However, a case conference is to be held after the filing of a “charge certificate” by the prosecutor: s 70(4). The charge certificate is central to the applicant’s argument because of the obligation contained in s 66(2), which reads:

3. [7]

   The applicant’s case rested on three propositions. First, the combination of these provisions means that the function of assessing the capacity of the evidence to establish each element of the offence charged has been removed from the magistrate conducting a committal proceeding, and has been conferred on the prosecutor. Secondly, the committal by the magistrate has become a mandatory rubber-stamping of the prosecutor’s opinion as to the adequacy of the evidence. Thirdly, to impose such a function on a judicial officer, capable of being invested with federal judicial power, substantially impairs the institutional integrity of the Local Court and, therefore, applying the reasoning in Kable v Director of Public Prosecutions (NSW) [2] and its progeny, contravenes a constraint imposed on State legislative power by Ch III of the Commonwealth Constitution.

4. [8]

   It should be noted that the challenge does not seek to impugn the removal of the traditional function of committal proceedings, namely the preliminary independent assessment by a magistrate of the prosecution case, but rather challenges the replacement of that function with the function described above.

5. [9]

   Acceptance of the applicant’s primary claim, as described above, will lead, the applicant submitted, to a finding that the whole of Ch 3, Pt 2 is invalid. Why that is so may, in broad terms, be inferred from the structure of Pt 2. Part 2 contains a number of steps involving case management, each of which is largely consequential on a preceding step. To the extent that Pt 2 provides a single coherent and integrated structure, it is argued that it will stand or fall as a whole. For reasons set out below, the primary challenge made by the applicant should not be accepted. It is, therefore, not necessary to examine the extent of any consequential invalidity.

6. [10]

   The reason why the challenge must be rejected may be succinctly stated in the following terms. While it is true that a magistrate no longer assesses the capacity of the evidence to support the elements of the offences charged, it is not correct to say that the magistrate is bound to provide an endorsement of the substantive opinion of the prosecutor recorded in the charge certificate. Rather, the functions now conferred on the magistrate under Ch 3, Pt 2 are case management functions. An order committing a person for trial or sentence is only made once the magistrate is satisfied that the necessary case management steps set out in Pt 2 have been complied with. Indeed, with some exceptions which it would be inconvenient to impose on a trial court, the case management functions are those which might have been undertaken by a trial court. As such, they cannot be said to impugn the institutional integrity of the Local Court.

Background circumstances

1. [11]

   For the purposes of addressing the issue now before the Court, the factual and procedural background may be briefly outlined. None of what follows was factually controversial.

2. [12]

   The applicant has been charged with two counts of dishonestly obtaining a financial advantage under s 192E(1)(b) of the Crimes Act 1900 (NSW), together with 23 counts of using a false document with the intention of obtaining a financial advantage, under s 254(b)(ii) of the Crimes Act.

3. [13]

   The current court attendance notice was served on 13 October 2021 and was returnable on 23 November 2021. The committal proceedings were deemed to have commenced on the date on which the court attendance notice was issued. [3] A brief of evidence had been served pursuant to an earlier notice and was relied upon with respect to the current notice.

4. [14]

   On 23 November 2021, the prosecutor filed a “charge certificate” identifying the offences that were to be the subject of the proceedings. It relevantly certified that the evidence available to the prosecutor was capable of establishing each element of the offences.

5. [15]

   No case conference has yet been held, but the applicant has made an application for prosecution witnesses to attend to give evidence. The application, made pursuant to s 82 of the Criminal Procedure Act, has yet to be determined.

6. [16]

   On 21 February 2022, the prosecutor filed a document known as a “Crown case statement”. Over the following two months, the proceedings were adjourned, and the applicant and the prosecutor exchanged correspondence with respect to particulars of the charges and other matters. The present proceedings were commenced in the Common Law Division on 26 May 2022. They were removed into this Court on 5 August 2022. The proceedings in the Local Court have been adjourned until 22 November 2022.

Legislative scheme

1. [17]

   The procedure adopted for indictable offences is dealt with in Ch 3 of the Criminal Procedure Act, which is titled “Indictable procedure”. Part 1, titled “Preliminary”, identifies the jurisdiction of the Supreme Court and the District Court to deal with all indictable offences. Part 2 is titled “Committal proceedings”. Part 2, Div 1 provides for the commencement of proceedings by the issue and filing of a court attendance notice in accordance with that Division: s 47(1). The nature and contents of a court attendance notice are identified in s 50, which reads:

2. [18]

   Division 2 identifies the steps taken in the course of committal proceedings, as summarised in s 55:

3. [19]

   It is immediately apparent from this outline of the steps in a committal proceeding that the current purpose is broadly incapsulated by the phrase “case management”. As the Attorney-General observed in the Second Reading speech for the 2017 Amendment Act: [4]

4. [20]

   Division 2 requires the committal proceedings to be heard “as if in open court” (s 57(1)) and requires that the magistrate explain the process and the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) with respect to the discounts that apply with respect to a sentence imposed following a guilty plea: s 59.

5. [21]

   A critical, but now commonplace, step in the administration of criminal justice is the requirement for the disclosure of the prosecution evidence well prior to the trial. Division 3, titled “Disclosure of evidence”, requires that the prosecutor serve a brief of evidence relating to each offence, the subject of the proceedings. Similar requirements are found in Ch 6 of the Criminal Procedure Act, which has been in force for almost 20 years, and which applies to all offences, whenever committed and in whatever court they are dealt with: s 274. There is no need to dwell on the particular requirements of Div 3 with respect to committal proceedings.

6. [22]

   Division 4 of Pt 2, titled “Charge certificates” has, as has been noted, a set of requirements concerning the filing and service of a “charge certificate”. Section 65 proscribes any person other than the Director, the Attorney-General or a person prescribed by regulation, from exercising the function of preparing a charge certificate. The key aspect of this division relied upon by the applicant, namely s 66(2), has already been set out. However, s 66(1), identifying the content of a charge certificate is important and should be noted:

7. [23]

   Division 5 deals with “Case conferences”; it will be convenient to return to those provisions after noting the terms of Div 6. Division 6, titled “Examination of prosecution witnesses”, provides for a magistrate to give directions for a witness to attend for examination and cross-examination, where there has been consent of the parties or where an application has been made: s 82. Such an order is to be made where each party consents but, absent consent, the magistrate may only give a direction if satisfied there are “substantial reasons why, in the interests of justice, the witness should attend to give oral evidence”: s 82(5). It appears that a direction must explain what were the substantial reasons for the witness attending because the cross-examination is not permitted in respect of matters “that were not the basis of the reasons for giving the direction”, unless the magistrate is satisfied that there are substantial reasons for expanding the original reasons: s 85(4).

8. [24]

   Because the evidence is neither to be given, nor challenged, for the purpose of persuading the magistrate that there is (or is not) evidence capable of supporting the charges, it is apparent, as explained by the Attorney-General in the Second Reading speech, that the purpose of permitting the examination and cross-examination of prosecution witnesses is to assist the parties, but presumably in particular the accused, “to assess better the case against the accused and to facilitate further negotiations about the charges and possible offers to plead guilty”. [5]

9. [25]

   The timing of such an application is important: it cannot be made before a charge certificate has been filed (s 82(3)) and, it may be inferred, will generally be heard either before the commencement of the case conference, or at least before a case conference certificate is filed indicating that all the case conferences have been completed: see s 74.

10. [26]

    Case conferences are dealt with in Div 5. A case conference is to be held after the filing of the charge certificate (s 70(4)) and there may be more than one such conference: s 70(5). The importance of the case conference within the scheme of case management may be gleaned from two provisions. The first concerns the role of the accused’s lawyer, which is set out in s 72 as follows:

11. [27]

    Secondly, and in terms which emphasise the importance of the obligation on the accused’s lawyer, s 75 prescribes the matters which are to be set out in a case conference certificate. These are as follows:

12. [28]

    Division 7 deals with the process where a question of fitness to be tried may arise and these provisions need not be considered for present purposes. It is sufficient to note that they ostensibly serve the same purpose as the other provisions, namely, to identify and address any question which may affect the commencement and running of a trial in advance of the matter being sent to the trial court. The need for such a provision at the committal stage may reflect the difficulties identified by the absence of such an express provision from the Northern Territory laws discussed in Ebatarinja v Deland. [6]

13. [29]

    Division 8 is titled “Committal for trial or sentence”. As has been noted, it provides for the timing of a committal, namely after a case conference certificate is filed: s 95(1). (There are qualifications which do not take the question of validity any further.) Section 96, as noted, requires that the magistrate commit the accused for trial unless a plea of guilty has been accepted, in which case the person is committed for sentence pursuant to s 97.

14. [30]

    Division 9 deals with steps to be taken by a trial or sentencing court; Div 10 relates to custody or bail, following a committal order. The only point of present relevance is the power conferred on a judge on a committal for sentence to order that committal proceedings be continued, if satisfied that the facts do not support the offence to which the accused pleaded: s 101(1). The committal proceedings are then resumed, as if the person had not pleaded guilty: s 101(2).

15. [31]

    It is readily apparent from this synopsis of Ch 3, Pt 2 that the purpose of a committal proceeding is to ensure proper case management of the criminal process, with the dual intention that cases are not listed for trial until the possibilities of guilty pleas have been explored and, so far as possible, exhausted, and, again to the extent possible, challenges to the evidence of prosecution witnesses have been explored, so as to limit the need for interruption to the trial to allow the accused to conduct a voir dire. It is apparent from the NSW Law Reform Commission’s 2014 report, Encouraging appropriate early guilty pleas (Report 141) (“NSWLRC Report”), that these were indeed the purposes underlying the proposed amendments. Although the Report did not contain a draft bill, it is clear that the 2017 Amendment Act followed closely the recommendations of the Commission. In formulating those recommendations, the Commission had regard not only to the need for procedural reform in NSW, but also to the range of models for reform which had already been adopted either in other Australian jurisdictions or overseas.

Case management in trial court

1. [32]

   In the course of oral submissions, counsel for the applicant resisted the categorisation of the purpose of committal proceedings as “case management”. That resistance no doubt reflected an appreciation that case management is an established role for judicial officers in the modern administration of both civil and criminal justice and is ancillary to the judicial function. As such it is constitutionally valid; the only distinction being that a committal proceeding is ancillary to proceedings in another court. However, a brief consideration of the procedures available in the trial courts supports that categorisation.

2. [33]

   Proceedings in a trial court are commenced by presenting an indictment, as provided in Pt 3, Div 2 of Ch 3 of the Criminal Procedure Act. Subject to the grant of an extension of time, an indictment is to be presented within four weeks “after the committal of the accused person for trial”: s 129(2). The accused is then arraigned and the opportunity for further pre-trial proceedings arises: s 130. Part 3, Div 3 contains further case management procedures.

3. [34]

   Without attempting to be comprehensive, it is convenient to set out certain pre-trial steps which may be taken in the trial court, be it the District Court or the Supreme Court. These provisions reveal a degree of repetition of the procedures available in the Local Court. As a practical matter, it may be that some of these functions will become less important than in the past (many were introduced in 2013) as a result of the 2017 Amendment Act and the provision of similar powers in the Local Court. However, the significance for present purposes is that there has been, and could be, no objection to the validity of those provisions. For the applicant to succeed, it was necessary for him to explain why powers of a similar kind available in the trial court were valid but those preceding committal from the Local Court were not.

4. [35]

   First, s 136 provides that “[a]t the first mention of proceedings in the court before which the trial is proposed to be heard, the presiding Judge is to give directions with respect to the future conduct of the trial.” Section 139 provides for pre-trial hearings in the following terms:

5. [36]

   There is also a procedure for holding a pre-trial conference:

6. [37]

   Section 141 provides for “mandatory pre-trial disclosure”, further details of which are provided in s 142. Section 142 is more prescriptive than the requirements imposed on the prosecutor in the Local Court, but there may be two consequences of the Local Court procedure which are relevant at trial. First, objections to the indictment may be less likely because the prosecutor will have had to formulate the charges and negotiate over which ones to pursue whilst still in the Local Court. Secondly, the need for pre-trial disclosure under Pt 2 is likely to have led the prosecutor to be in a position where the obligations in the trial court under s 142 will already have been partly, and perhaps largely, fulfilled.

7. [38]

   Again, however, the point of present relevance is not that there is a double administrative burden being imposed on the parties, but rather that similar steps are required to be taken under the aegis of case management in the trial court, of a similar kind to those undertaken in the course of committal proceedings. Committal proceedings are not, and never were, an exercise of judicial power. In their current form, they are a form of case management. It is difficult to see how case management provisions can impair, let alone substantially impair, the integrity of the court on which they are conferred.

History of committal proceedings

1. [39]

   Because the applicant, no doubt for sound reasons, did not challenge the removal of the previous function of committal proceedings, requiring the magistrate to assess the capacity of the prosecution evidence to satisfy the charges, it is unnecessary to explore the history of committal proceedings in this State (or in Australia more generally) prior to the commencement of the 2017 Amendment Act. However, there was extensive reference to that history in the parties’ written submissions in this Court and, accordingly, that material should be addressed briefly. (It is comprehensively explained in the NSWLRC Report.)

2. [40]

   Arguably the incentive to explore the history resulted from the continued use of the term “committal proceedings” and the continued conferral of power on the magistrate conducting those proceedings to “commit” the accused person for trial or sentence. As further explained below, to the extent that that language implies a continuation of the traditional function of such a proceeding, it is apt to mislead.

3. [41]

   Dawson J observed in Grassby v The Queen [7] that the then current form of committal proceeding was not established in the United Kingdom until 1848 by Sir John Jervis’ Act, [8] adopted in New South Wales in 1850. When Grassby was decided the statutory source of power was s 41 of the Justices Act 1902 (NSW). Even then the primary purpose was not to determine whether the person should stand trial, but whether he or she should be committed to gaol to await trial or be admitted to bail, or discharged. In principle, that primary function changed with the abolition of grand juries, whose role it was to determine whether the person should stand trial. Grand juries were abolished in the UK in 1933, but they had not served a similar function since 1850 in New South Wales. [9] However, the maintenance in New South Wales of the ex officio indictment meant that committal for trial did not determine whether a person charged with an offence would be indicted. [10]

4. [42]

   Since 1989, the process then found in s 41 of the Justices Act has been amended on numerous occasions. Separately, an important step in the transformation of committal proceedings in New South Wales was the establishment in 1986 of the Director of Public Prosecutions as an independent statutory officer, who was subject to direction of the Attorney-General, but not in respect of “the preparation, institution and conduct of any proceedings”. [11]

5. [43]

   By 2003, [12] prosecution evidence was to be given by written statements in admissible form: s 74(1). On the first return date of a court attendance notice, the magistrate was to set the time within which written statements were to be served and the time within which the accused must serve a notice requesting the attendance of a person who had made a written statement: s 60(1). There were detailed rules concerning the form and content of written statements: Ch 3, Pt 2, Div 3. The accused was entitled to waive a committal hearing and, with the consent of the prosecutor, the magistrate could then commit the accused for trial: s 68. Subject to a variety of restrictions noted below, the magistrate was required to give the accused an opportunity to give evidence or call witnesses: s 97. The magistrate was required to have regard to the prosecution evidence first and discharge the accused if that evidence was not capable of satisfying a reasonable jury as to the commission of the offence: s 62. If the prosecution evidence were sufficient to satisfy that test, the magistrate was then required to consider all of the evidence and, if satisfied that “there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence”, commit the accused for trial: s 65(1).

6. [44]

   In Grassby, Dawson J had identified the important functions of the committal process which may be summarised as follows: [13]

7. [45]

   The introduction in 1983 of paper committals and in 2003 of a power to waive a formal committal hearing and to proceed on the papers, in practice removed the importance of most of these functions. As recorded by the Law Reform Commission, only 65 out of some 6,000 completed committal matters in 2012-2013, or about 1%, were discharged by the Local Court at committal. [14] Of those, 40% were dismissed at a mention prior to a committal hearing, 25% were dismissed following an application for cross-examination of witnesses, and 26% were dismissed on a “paper committal”. Fewer than 6% of completed committal matters involved a successful application to cross-examine a witness. [15] Further, in 18% of matters discharged at committal, an ex officio indictment was filed. [16] The Commission concluded:

8. [46]

   In Commonwealth matters, both nationally and in NSW, the same rate of 1% discharge at committal obtained. [17] By contrast, 9% of matters listed for trial in the District Court were not pursued. [18]

9. [47]

   In short, as a practical matter, in 2014 the benefits available to an accused pursuant to the scheme discussed by Dawson J in Grassby were of little practical significance. However, not all were abandoned in the 2017 Amendment Act. The availability and criteria upon which witnesses might be called for cross-examination were retained. The purpose of marshalling the evidence has been retained and the process of pre-committal case management has been given a precise structure and expanded. This was a deliberate course adopted by the Commission, having noted the adverse consequences of a simple removal of the committal hearing in other jurisdictions. [19]

Constitutional constraints: Legal principles

1. [48]

   The foregoing discussion has assumed, without justifying, the test which is to be applied in determining the validity of the State’s legislation. The applicant’s case was formulated in accordance with principles stated by the High Court in Kable v Director of Public Prosecutions. [20] Those principles should be articulated.

2. [49]

   In Kable the High Court held invalid a New South Wales law authorising the Supreme Court to order that an individual, Gregory Wayne Kable, continue to be held in custody after the expiration of a sentence, if satisfied on reasonable grounds that he was more likely than not to commit a serious act of violence if released. The reasons for declaring the law invalid were variously articulated by members of the majority. Gaudron J found that the Act purported to confer on the Court a power which was “repugnant to or incompatible with the exercise of the judicial power of the Commonwealth”. [21] McHugh J declared that the Act and its procedures “compromise the institutional impartiality of the Supreme Court”. [22] Gummow J accepted a submission that “the appearance of institutional impartiality in administering that law, and inflicting punishment for breach of it, is sapped to an impermissible degree by ad hominem legislation”. [23] Gummow J stated: [24]

3. [50]

   There are differences of emphasis in the separate majority reasons in Kable, differences which have received closer attention in later cases. However, as explained by Professor Stellios: [25]

4. [51]

   It is necessary, then, to consider the traditional function of committal proceedings. Before taking that step, reference should be made to the expression of the test of constitutional invalidity in Wainohu v State of New South Wales. [27] The case concerned the validity of a statute conferring on a Supreme Court judge power to declare, on an application by the Commissioner of Police, an organisation to be a criminal organisation, a status which imposed significant constraints on the liberties of its members. The judge was not required to give reasons for such a declaration. French CJ and Kiefel J stated: [28]

5. [52]

   The applicant adopted the language of “enlist[ing] a court to implement decisions of the executive in a manner incompatible with that court's institutional integrity” as applicable to the present case.

6. [53]

   Returning to the issue of traditional functions, the applicant relied on the function of committal proceedings identified by Gibbs ACJ and Mason J (Aickin J agreeing) in Barton v The Queen, [29] in the following terms:

7. [54]

   However, there are three reasons why care must be taken in adopting this statement without qualification, and it may be noted that the applicant did not do so.

8. [55]

   First, the statement was made in the context of dismissing the submission that a superior court had power to review the exercise of the Attorney-General’s decision to file an ex officio indictment. In that context, the joint reasons in Barton both emphasised the need for a trial court to ensure that the trial was fair and noted other means of providing fairness.

9. [56]

   Secondly, the strong statement of three members of the Court was not reflected in the reasons of the other three. Stephen J rejected the contention that “an essential pre-condition of a fair trial is that it should be preceded by committal proceedings”. [30] He expressed his reasoning in more guarded terms: [31]

10. [57]

    Murphy J stated: [32]

11. [58]

    Wilson J stated, even more robustly: [33]

12. [59]

    Thirdly, much has changed since Barton. As noted above, the need for pre-trial disclosure of the prosecution case has been developed and refined over the intervening period. Nor has any case suggested that the traditional function of the committal proceeding was constitutionally inviolable.

13. [60]

    The other aspect of the committal proceeding which needs to be noted is its relationship with trial or sentence proceedings which may ensue upon committal. As explained in The Queen v Murphy: [34]

14. [61]

    The statement may be contrasted with the reasoning in Palmer v Ayres, [35] where the High Court held that the power conferred by s 596A of the Corporations Act 2001 (Cth) to issue a summons, requiring an officer or provisional liquidator of a corporation to attend for examination about a corporation’s examinable affairs, constituted an order made in the exercise of judicial power. [36] Accepting, however, the traditional view that a committal proceeding is an administrative process, particularly when conducted in a state court where it is not necessary to determine whether there is a “matter” inviting the characterisation as the subject of judicial power, the question is whether the form of the administrative function is incompatible with the judicial functions of the court. As the applicant accepts, that has never yet been held to be the case. While the current purposes and procedures are less similar to traditional curial processes than those in place in 1985, the current functions remain incidental to the curial process.

Application of principles

1. [62]

   Factually, the present law is far removed from that addressed in Kable (and indeed that considered in Wainohu). The provisions of the Criminal Procedure Act are not concerned with an individual, but apply generically to all those charged with indictable offences in New South Wales. They do not impose punishment, but condition procedural powers which precede a person being placed on trial. They are not concerned with matters which involve no criminal charge or conviction, but rather are directed to the procedure for putting on trial a person charged with an indictable offence.

2. [63]

   Nevertheless, counsel for the applicant submitted that the Local Court, albeit in performing an administrative function, was being required to rubber-stamp a certificate given by an officer of the prosecuting authority to the effect that there was evidence available with the capacity to satisfy the elements of the offences with which the person was charged. If that were a proper characterisation of the process, it would at least be a coherent basis for the submission that the law is inconsistent with the institutional integrity of the Local Court, being a court available for the exercise of the judicial power of the Commonwealth.

3. [64]

   The 2017 Amendment Act, however, has removed from the Local Court a key element of the traditional function, namely the adjudication as to the capacity of the prosecution case to sustain a verdict.

4. [65]

   Further, there was no dispute that that particular function of the Local Court had been whittled away before the 2017 Amendment Act by requiring that the prosecution serve a brief of evidence before the committal hearings, permitting committal hearings to be waived, or conducted on the papers or partly on the papers and partly by way of cross-examination of selected prosecution witnesses, and by imposing constraints on the circumstances in which cross-examination of witnesses would be permitted.

5. [66]

   The ability in particular circumstances to require the prosecutor to call witnesses for cross-examination remains, subject to control by the magistrate. More significantly, the magistrate no longer has the function of assessing the capacity of the evidence given by the witness to establish the offences charged.

6. [67]

   None of those changes, it was submitted, had the effect of rendering the function of the magistrate unconstitutional. Rather, that consequence was said to flow from the fact that the traditional function of assessing the capacity of the evidence to maintain the charges was now conferred on the prosecutor, so that, where the prosecutor had given the relevant certificate, the magistrate was obliged to commit the person for trial.

7. [68]

   However, this is not a case where the judicial officer has been enlisted into the executive and given a non-discretionary duty to rubber-stamp a finding by an executive officer. There is now no assessment of the merits of the prosecution case to be made by the magistrate conducting a committal proceeding. An entirely separate obligation is imposed on the prosecutor to provide a certificate stating that he or she has formed the necessary opinion as to the capacity of the evidence to satisfy the elements of the charge. This is, no doubt, seen as a useful exercise to ensure that charges are not laid prematurely or without proper support in the available evidence. The magistrate is not required to assess the merit of the certificate, nor to review the adequacy of the supporting evidence.

8. [69]

   The issuing of a charge certificate is one step (a mandatory step) in the pre-trial process leading to a committal for trial or sentence. An important purpose of the charge certificate is to indicate whether any offences charged are no longer to be proceeded with. The case conference procedure is designed to ensure that steps are taken to obtain any pleas of guilty to those charges which are pressed, as appropriate, prior to committal. That process is not required where the accused is unrepresented, or has already entered pleas of guilty: s 69. Otherwise, the magistrate is to fix a time for a case conference and the obligation of the legal representatives is to ensure that the case conference takes place and that a certificate to that effect is filed within the prescribed time.

9. [70]

   Accordingly, the pre-trial process now involves the following steps:

10. [71]

    It is not possible to imply from this statutory scheme any obligation on the part of the magistrate to assess the merits of the prosecution case, nor to assess the correctness or otherwise of the content of the charge certificate. Accordingly, there is no sense in which the Local Court is required or empowered to rubber-stamp a determination by an executive officer as to the merit of the prosecution case.

11. [72]

    The applicant’s argument is based on the assumption that the earlier function of a committal proceeding (namely the assessment of the capacity of the evidence to support the charges) remained a function following the 2017 Amendment Act. On that assumption, the only scope for an assessment by the magistrate would be if the magistrate were required in some way to assess the merit or validity of the charge certificate. However, the assumption is falsified by the statutory scheme. What had been the primary function of a committal proceeding no longer is so.

12. [73]

    It follows that the constitutional challenge to the validity of the scheme in its present form must be rejected. The applicant must pay the costs of the Director, being the active party in this Court.

Orders

1. [74]

   The Court should make the following orders:

   1. (1)

      Direct that the applicant file within 14 days an amended summons identifying the Director of Public Prosecutions (NSW) and the State of New South Wales as the first and second defendants.

   2. (2)

      Dispense with the need for service of the summons so amended.

   3. (3)

      Dismiss the summons filed in the Common Law Division and removed into this Court, as amended.

   4. (4)

      Order that the applicant pay the costs of the Director of Public Prosecutions of and incidental to the summons.