McNamara v Fenner

1. [1]

   HIS HONOUR: By his amended summons filed on 4 July 2017, Michael McNamara seeks leave to appeal pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 from the decision of Magistrate Michael O’Brien in the Local Court delivered on 18 May 2017. In the alternative, Mr McNamara seeks relief by way of judicial review pursuant to s 69 of the Supreme Court Act 1970.

2. [2]

   Mr McNamara had been charged with 282 breaches of the Stock Diseases Regulation 2009 with respect to offences allegedly committed between January 2014 and January 2016. On the first day of what was to be a defended three day hearing of the charges at Inverell, the prosecutor sought to withdraw them all pursuant to s 208 of the Criminal Procedure Act 1986. Mr McNamara opposed that course and instead sought a dismissal of the charges pursuant to s 205 of that Act, together with a certificate pursuant to s 205(2) and an order for costs. His Honour permitted the prosecution to withdraw the charges pursuant to s 208, refused to make any alternative order pursuant to s 205 and declined to order the prosecution to pay Mr McNamara’s costs.

3. [3]

   Accordingly, Mr McNamara now seeks an order setting aside his Honour’s decision and asks that the charges be dismissed pursuant to s 205. He also seeks an order that the prosecutor pay his costs thrown away in those circumstances. Central to each avenue of appeal or review is his Honour’s refusal to award costs to Mr McNamara following the automatic dismissal of the charges under s 208 of the Criminal Procedure Act.

4. [4]

   Mr McNamara’s amended summons raises at least four central issues for determination in this Court:

   1. (1)

      Is his Honour’s decision interlocutory for the purposes of s 53(3)(b) of the Crimes (Appeal and Review) Act?

   2. (2)

      If it is, should leave be granted?

   3. (3)

      Is judicial review available under s 69 of the Supreme Court Act?

   4. (4)

      If it is, did his Honour make an error of law or a jurisdictional error?

Background

1. [5]

   Mr McNamara was served with court attendance notices with respect to all charges on 4 April 2016 requiring his attendance at the Inverell Local Court on 9 June 2016. After a number of mentions, the matters again came before the Local Court on 29 September 2017 and were on that day listed for hearing over a three day period commencing on 1 February 2017.

2. [6]

   On 25 January 2017, the officer in charge of the investigation filed an application in the Inverell registry seeking to vacate the hearing date. Among the grounds listed in support of the application, the prosecution said this:

3. [7]

   His Honour dealt with the application in chambers. It was refused. As a result, the prosecution advised Mr McNamara’s solicitors that the prosecution would not proceed and that the charges would be withdrawn. The prosecutor, in anticipation of a costs application, also invited Mr McNamara’s solicitors to submit an estimate of his costs for consideration.

4. [8]

   The matter came before his Honour on 2 February 2017. The prosecutor announced that the charges were withdrawn. Mr McNamara opposed the withdrawal of the charges pursuant to s 208 and sought instead a dismissal by the Court pursuant to s 205(1) together with a certificate pursuant to s 205(2). That application was based upon Mr McNamara’s concern that to accede to the prosecutor’s request would permit the later institution of proceedings against him for the same matters: s 208(2). He submitted that to allow the prosecutor to withdraw the charges pursuant to s 208 would constitute an abuse of process and that his Honour should instead, of his own motion, have dismissed the charges pursuant to s 205.

5. [9]

   Mr McNamara’s application was opposed by the prosecution, contending that there was no legal or other impediment to her withdrawing the charges and that by operation of the s 208(1), they were taken to be dismissed. Mr McNamara would thereafter be taken to be discharged in relation to the offences concerned.

His Honour’s reasons

1. [10]

   His Honour delivered a long and thorough judgment on a wide range of issues. It will be necessary to refer to these reasons in more detail below. However, with respect to Mr McNamara’s concerns about the operation of s 208 of the Act, his Honour said the following:

2. [11]

   His Honour then referred to the decision of Burns J in R v Feeney [2012] ACTSC 153 at [16] and continued as follows:

3. [12]

   His Honour then turned to consider Mr McNamara’s application for costs. The orders ultimately made by his Honour were as follows:

   1. (1)

      The application for an order dismissing the proceedings pursuant to s 205 and the issue of a certificate pursuant to s 205(2) is refused.

   2. (2)

      The application for costs is refused.

Interlocutory or final?

1. [13]

   Section 53 of the Crimes (Appeal and Review) Act provides as follows:

2. [14]

   Mr McNamara’s application for leave falls for determination under s 53(3)(b) of the Act. He maintains that his Honour’s orders were interlocutory. Detective Fenner contends that the orders were final. I agree with Detective Fenner.

3. [15]

   It is uncontroversial that the test of whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties: Bienstein v Bienstein [2003] HCA 7 at [25]. The test calls for an assessment of the consequences of the order itself and a decision about whether the order finally determines the rights of the parties in a principal cause pending between them. Mr McNamara relies in this case upon the proposition that, by reason of the operation of s 208(2), he could be prosecuted in fresh proceedings “for the same matter”. He contends, therefore, that his Honour’s decision does not finally dispose of the rights of the parties.

4. [16]

   In my view, that contention misconceives the effect of the orders made by the learned Magistrate. The orders operate finally to dispose of the proceedings that were then on foot against Mr McNamara and which, by operation of s 208, came to an end.

5. [17]

   Sections 205 and 208 of the Act are in these terms:

6. [18]

   It is clear from Mr McNamara’s amended notice of appeal and from his detailed submissions before me that he challenges the correctness of both orders made in the Court below. That is to say, he appeals against his Honour’s refusal somehow to dismiss the charges pursuant to s 205 of the Act as well as his refusal to award costs.

7. [19]

   However, these submissions overlook the fact that the prosecutor had an unrestricted and unfettered right to withdraw the charges. She was not required to demonstrate the existence of any particular circumstances or the satisfaction of any preconditions before being able to do so.

8. [20]

   Mr McNamara argued that the learned Magistrate had the power to refuse to accept the prosecutor’s decision to withdraw the charges against him. He submitted, by analogy with the position in respect of a nolle prosequi, that his Honour had jurisdiction to refuse to permit the prosecutor to do so. He relied upon what was said by the South Australian Court of Criminal Appeal in Question of Law Reserved on Acquittal (3 of 1995) Michael Charles Baenisch (1996) 88 A Crim R 1 at 22 as follows:

9. [21]

   Whether or not Mr McNamara’s analogy between the entry of a nolle prosequi and a withdrawal of proceedings pursuant to s 208 is good is for present purposes beside the point. If Mr McNamara is challenging what in effect amounts to his Honour’s refusal to prevent the prosecutor from withdrawing the charges against him, he is in any event challenging what was a final decision. His Honour’s conclusion that the prosecutor’s application to withdraw the charges was self-executing is no less a final decision than his refusal to consider making an order pursuant to s 205. In either case, the criminal proceedings commenced by the service of the 282 court attendance notices came to an end. There was thereafter no existing or current proceeding in the context of which his Honour made, or could have made, an interlocutory decision of any kind. When the charges were withdrawn, the proceedings were at an end and Mr McNamara was deemed to be discharged.

10. [22]

    Even if it were otherwise, Mr McNamara’s express concerns about whether there has been some abuse of process, unfairness or injustice, inappropriately focuses attention upon the result of the withdrawal of the charges, about which there could be no such complaint, and conflates it with what might be the position if the prosecutor elected to lay the same charges again in fresh proceedings. Only in that context would Mr McNamara’s concerns about an abuse of process, or unfairness or injustice, or the need for the court to maintain control over its own process, assume importance. I respectfully agree with his Honour’s remarks in this regard.

11. [23]

    In short, Mr McNamara’s concerns are premature. Having regard to what was said by the prosecutor to his Honour, they would also appear to be unfounded. This is for the reason that, on 2 February 2017, the prosecutor said this in response to Mr McNamara’s expressed concerns about the reinstitution of proceedings:

12. [24]

    Other passages in that transcript make it clear that the prosecution did not propose to reinstitute proceedings afresh.

13. [25]

    I am also of the opinion that his Honour’s decision with respect to costs was a final determination. My attention was drawn to what was said by Harrison AsJ in Coles Supermarkets Australia v Antony Townsden [2009] NSWSC 1117. Her Honour was there concerned with an appeal to this Court pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act. Her Honour was called upon to consider whether a magistrate’s decision to refuse to make an order for costs was an interlocutory decision. Her Honour dealt with this question at [11] and [14] to [20] as follows:

14. [26]

    I respectfully agree with her Honour’s conclusion. Sully J’s reference to the position where a nolle prosequi is entered is also significant, especially having regard to the reliance placed upon this by Mr McNamara. Whatever may be, or may have been, his Honour’s power or ability to refuse to permit the prosecution to withdraw the charges pursuant to s 208, once that occurred, and the charges were withdrawn, the proceedings were at an end.

15. [27]

    An order will not have the character of a final order if it is theoretically possible for the unsuccessful party to make a further application for the same relief, even though such an application may have little prospect of success: CDW v LVE [2015] WASCA 247 at [54]. It is not theoretically possible for Mr McNamara in this case to seek to reagitate the issues of either the making of an order pursuant to s 205 of the Act or his Honour’s decision to refuse to award costs. There is in these circumstances no jurisdiction to entertain Mr McNamara’s appeal pursuant to s 53(3)(b) of the Act. Leave to appeal should be refused.

Judicial review

1. [28]

   Section 69(1) of the Supreme Court Act is in the following terms:

2. [29]

   It is not in issue in these proceedings that Mr McNamara has a right to apply to this Court for judicial review of his Honour’s decision.

3. [30]

   This Court may grant relief pursuant to s 69 of the Supreme Court Act with respect to error of law on the face of the record or jurisdictional error. Mr McNamara appears to contend that both types of error are evident in his Honour’s judgment. Jurisdictional error appears to be asserted in respect of his Honour’s construction of s 208 and s 214 of the Criminal Procedure Act. Mr McNamara contends that his Honour concluded that s 208 is to be construed so as to permit a prosecutor unilaterally to withdraw charges in circumstances where their withdrawal may constitute an abuse of process and that the Local Court is therefore precluded from exercising any control over that withdrawal. This is said to constitute jurisdictional error. Mr McNamara also argues that his Honour impermissibly limited the operation of s 214 and that this also constitutes jurisdictional error.

4. [31]

   Mr McNamara relied upon a series of grounds of appeal in this context in his amended notice of appeal. These are dealt with in turn.

5. [32]

   These grounds were formulated in the following terms:

6. [33]

   The relevant portion of his Honour’s judgment dealt with this question as follows:

7. [34]

   His Honour proceeded thereafter to formulate his conclusions at [35] and [36] as earlier described.

8. [35]

   Mr McNamara contended that his Honour’s analysis, and his conclusion that s 208 was self-executing, had the effect of expressly limiting the court’s ability to control its own processes by excluding the power to refuse to permit the prosecution to withdraw the charges in circumstances where their withdrawal had the tendency to work an abuse of process. He argued that the imposition of that limitation upon the court’s power constituted jurisdictional error.

9. [36]

   In support of that contention, Mr McNamara relied upon what was said by Mason P in DPP v Shirvanian (1998) 44 NSWLR 129 at 134-5 and the cases there cited. However, what his Honour said included the following:

10. [37]

    In the present case, his Honour applied what seems to me to be the clear words of the relevant sections of the Act. Far from limiting the Court’s power to control its own process, or to prevent any abuse of that process, his Honour implicitly, if not on one view explicitly, recognised that the time for assessment of any such concerns had not yet arisen; see, for example, at [38] of his Honour’s judgment previously cited. The limited prospect of the prosecution reagitating the charges was small, but the time to consider whether there may have been an abuse of process does not arise unless and until that occurs. The power of the Court to restrain the prosecutor’s ability to withdraw the charges is clearly constrained, if not entirely excluded, by the words of s 208. Nothing in that section, however, operates to prevent a later stay of proceedings, for example, to avoid an abuse of process as the circumstances of the case may require. An attempt by the prosecution to reinstitute the charges would arguably be such a case.

11. [38]

    His Honour made no error of the kind asserted by Mr McNamara or at all.

12. [39]

    These grounds are as follows:

13. [40]

    Section 214(1) of the Act is as follows:

14. [41]

    His Honour’s conclusion with respect to s 214(1)(a) is as follows:

15. [42]

    The significant thrust of Mr McNamara’s submissions before his Honour and in this Court was that an examination of the prosecution brief failed to reveal the existence of evidence sufficient to establish the case against him. His submissions described the brief as “materially incomplete” and that that “arose out of an incomplete investigation of the allegations” which in turn supported a conclusion that “the investigation had been conducted in an improper manner”. Mr McNamara submitted in these circumstances that “the prosecutor ought to have been aware that, on the prosecution case, [Mr McNamara] was not guilty.”

16. [43]

    Section 214(1)(a) directs attention to the reasonableness and propriety of the investigation, not to the adequacy or otherwise of the evidence marshalled or discovered or assembled as a result. Mr McNamara’s submissions direct attention to the latter. I accept that Mr McNamara contends that the alleged paucity of the evidence may hypothetically bespeak or suggest an improper or unreasonable investigation and that it does so in the present case. However, the proper inquiry, to which his Honour directed himself, was to the investigation itself. His examination of the police brief and the “evidence” that it contained, was conducted at Mr McNamara’s urging. It does not follow that a conclusion by his Honour, which he declined in any event to make, that the evidence did not establish the charges against Mr McNamara, foreclosed his Honour’s conclusion that the unreasonableness or impropriety of the investigation had not been established. I agree with his Honour’s analysis that Mr McNamara’s contentions conflate the perceived deficiencies or insufficiencies in the evidence with the separate question of whether the investigation was conducted in an unreasonable or improper manner.

17. [44]

    His Honour said this at [68] and [77]:

18. [45]

    Support for this approach, if support were needed, can be found in the judgment of Hall J in Halpin v Department of Gaming and Racing [2007] NSWSC 815 at [46] – [49]:

19. [46]

    I do not consider that in the present case his Honour erred in his consideration of s 214(1)(a) of the Act.

20. [47]

    With respect to s 214(1)(b) of the Act, Mr McNamara specifically disavowed any suggestion that the proceedings were initiated in bad faith. He relied instead only upon the propositions that they had been initiated without proper cause or had been conducted in an improper manner.

21. [48]

    His Honour gave further consideration to the decision of Hall J in Halpin, and the cases to which Hall J referred. The following further principles can be distilled:

    1. (1)

       A party does not institute proceedings without reasonable cause merely because that party fails in the argument put to the court.

    2. (2)

       A proceeding will be instituted without reasonable cause if it has no real prospects of success or was doomed to fail.

    3. (3)

       The question as to whether at the time the proceeding was instituted it had no real prospects of success or was doomed to fail is a question of fact to be determined objectively.

    4. (4)

       One way of testing whether a proceeding is instituted without reasonable cause is to ask whether, upon the facts apparent to the prosecutor at the time of instituting the proceedings, there was no substantial prospect of success, and if success depends upon the resolution in the prosecutor’s favour of one or more arguable points of law, it is inappropriate to stigmatise the process as being without reasonable cause. However, where on the prosecutor’s own version of the facts it is clear that the proceeding must fail, it may properly be said that the proceeding lacks reasonable cause: Canceri v Taylor (1994) 123 ALR 667.

22. [49]

    His Honour took account of the submission below that, having investigated the matter, the prosecution had determined that the evidence it had assembled disclosed a prima facie case sufficient to warrant the charges being preferred against Mr McNamara. Significantly, the prosecution relied upon a record of interview with Mr McNamara said to contain admissions by him of breaches of regulations 35(2)(a) and 35(3) of the Regulation. His Honour was therefore “alive to the potential difference between a case that failed at a prima facie level and a proceeding that could be characterised as having been initiated without reasonable cause”: O’Brien v Hutchinson [2012] NSWSC 429 at [25].

23. [50]

    Mr McNamara submitted that his Honour erred "by misunderstanding the facts in a material and fundamental respect and by construing the subsections in such a way as to exclude them from situations where the prosecution has failed to obtain…evidence which is capable of proving to the requisite degree, each and all elements of the offences charged." He contended that this constituted a material error of law.

24. [51]

    Mr McNamara necessarily maintains that his Honour somehow failed to apply the proper test in his consideration of the section. However, in my opinion, that submission must fail. His Honour did not accept Mr McNamara’s argument that there were evidentiary gaps in the prosecution brief that meant that the proceedings had been commenced without reasonable cause or that they had been conducted in an improper manner. Such a finding was open to him.

25. [52]

    With respect to s 214(1)(c), Mr McNamara maintained a similar approach.

26. [53]

    The focus of s 214(1)(c) is upon whether there was an unreasonable failure to investigate any relevant matter which suggested that McNamara might not be guilty: RP v DPP [2015] NSWSC 248. This provision will arguably be enlivened in circumstances where, for example, it emerges that the prosecution was aware of matters that suggested that an accused person may not be guilty of the offence charged, and that the prosecution did not reasonably investigate those matters.

27. [54]

    His Honour dealt with this provision at [96] to [104] of his judgment. Some of what his Honour said is as follows:

28. [55]

    In my opinion, his Honour’s conclusion that Mr McNamara has not demonstrated that the prosecutor unreasonably failed to investigate any relevant matter or that for any other reason the proceedings should not have been brought is unexceptionable.

29. [56]

    Finally, in this group of appeal grounds, Mr McNamara originally contended that his Honour erred in law in that he found that a lack of evidence of the elements of the offences charged was only a matter of weight. This ground was not separately the subject of further submissions beyond the extent to which it was argued in the context of other grounds of appeal.

30. [57]

    I do not consider that his Honour made any error of law or jurisdictional error in his treatment of s 214(a), (b) or (c) of the Act.

31. [58]

    This ground of appeal was formulated as follows:

32. [59]

    His Honour dealt with this provision at [105] to [111] of his judgment as follows:

33. [60]

    It is well established that a defendant’s conduct in relation to an investigation or the conduct of proceedings may be a factor to be considered when deciding whether it is “just and reasonable” to exercise the discretion. For example, in Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at 544, Mason CJ said this:

34. [61]

    To my best observation, there is nothing in his Honour’s judgment that comes close to providing any support for this ground of appeal. His Honour referred to Latoudis v Casey at [121] but did not formulate his reasons in a way suggesting or indicating that he limited himself in dealing with s 214(1)(d) as contended by Mr McNamara.

35. [62]

    These grounds are as follows:

36. [63]

    His Honour dealt with the submission below at [128] of his judgment as follows:

37. [64]

    This ground of appeal did not become any clearer in submissions before me. No error of law or jurisdictional error has been identified or explained.

38. [65]

    This ground was as follows:

39. [66]

    This ground of appeal seeks to agitate matters that have already been dealt with in the context of other grounds of appeal. It is unnecessary to consider it further.

Conclusion

1. [67]

   For the reasons set forth above, I am not satisfied that his Honour fell into any error of the type nominated by Mr McNamara, either in the decision to refuse his application for an order dismissing the proceedings pursuant to s 205 of the Criminal Procedure Act or his decision to refuse Mr McNamara’s application for costs. His Honour also did not fall into jurisdictional error in his construction of s 208 or s 214 of that Act.

Was there an agreement as to costs?

1. [68]

   His Honour’s deliberations and conclusions somewhat curiously included a consideration, in the context of Mr McNamara’s application for costs, of the question of whether or not there had been an agreement reached between Mr McNamara and the prosecution about the payment of his costs.

2. [69]

   Under this same heading, his Honour dealt with the issue as follows:

3. [70]

   I am presently uncertain as to precisely what role Mr McNamara suggests the alleged agreement as to costs, or his Honour’s treatment of it in the Court below, is said to play in these proceedings before me. The suggested agreement is not the subject of any discrete ground of appeal. It does not arise as an issue by inference or otherwise in the consideration of any ground of appeal. Despite some passing reference to it in the proceedings before me, no significant submissions about it were made. Certainly Mr McNamara’s written submissions make no reference to it. I remain unassisted as to the basis upon which complaint is now made about it, if any. I was not assisted by any argument concerning the relationship between the agreement that is alleged by Mr McNamara on the one hand and his Honour’s discretion concerning costs. In particular, I have not been told whether the agreement, if established, is said to foreclose that discretion, or whether it is a matter of merely persuasive force. I note finally that the existence of a binding and enforceable agreement between the prosecutor and Mr McNamara, if such were possible in this context, has been denied by the prosecutor and has not otherwise been the subject of separate enforcement proceedings by Mr McNamara.

4. [71]

   Having regard to these matters I do not propose to consider it further.

Orders

1. [72]

   It follows in my opinion that the following orders should be made:

   1. (1)

      Refuse leave to appeal pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001.

   2. (2)

      Amended summons otherwise dismissed with costs.