El-Ali v Commonwealth Director of Public Prosecutions and the Local Court of NSW

By summons filed on 13 January 2015 the plaintiff seeks the following orders:

On 3 February 2015 Button J granted an order to the effect of that sought in paragraph (2) of the summons. It should also be noted that the reference in paragraph (3) of the summons to s. 53(3)(b) of the Crimes Appeal and Review Act 2001 is obviously an error. That section refers to interlocutory orders made by a Magistrate in summary proceedings. The plaintiff in the present case seeks relief in respect of what is said to be an order made by a Magistrate in committal proceedings. Consistent with the submissions made to me in the course of the hearing, the reference is paragraph (3) of the summons should be read as a reference to s. 53(3)(a).

The only active defendant at the hearing before me was the first defendant, the Commonwealth Director of Public Prosecutions (“CDPP”). The second defendant (the Local Court of NSW) filed a submitting appearance. A court book containing all relevant evidentiary material was admitted as Exhibit A.

The plaintiff has been charged with an offence (“the Commonwealth offence”) of conspiring to import tier two goods contrary to s. 11.5 of the Criminal Code 1995 (Cth) (“the Code”) and s. 233BAB(5) of the Customs Act 1901 (Cth).

He has also been charged with the following (“the State offences”):

The entirety of the charges against the plaintiff involve the alleged importation, possession and supply of 140 Glock pistols. Two other persons, Ahmed Karnib (“Karnib”) and Andrew Botros (“Botros”) have also been charged with offences arising out of the same circumstances. In short, the case against the plaintiff is that he arranged for the purchase, delivery and importation into Australia of firearms, firearm parts and firearm magazines. On the Crown case, there were 21 successful importations into Australia. However, only a proportion of the pistols which are said to have been imported have been recovered.

In light of the issues raised by the plaintiff, it is necessary for me to briefly recount the procedural history of the proceedings in the Local Court.

The charges against the plaintiff came before the Local Court on various occasions between 14 March 2012 and 5 February 2013, during which time they were progressively adjourned to allow the completion of service of the brief of evidence. On the majority of those occasions there were separate appearances on behalf of the CDPP (in respect of the Commonwealth offence) and the NSW Director of Public Prosecutions (“the NSWDPP”) (in respect of the State offences).

On 5 February 2013 there was a single appearance by Mr Powell, solicitor, on behalf of the CDPP. On that occasion Mr Powell informed the court as follows:

The circumstances in which the CDPP came to take over the prosecution of the State offences emerge from correspondence between the CDPP and the NSWDPP. On 16 May 2012 Mr Pickering SC, the Deputy NSWDPP wrote to the then CDPP, Mr Craigie SC (as his Honour then was) in (inter alia) the following terms (CB 49-51):

By letter of 24 January 2013, the then Senior Assistant Director of the CDPP, Ms Ellen McKenzie, wrote to Mr Pickering SC in (inter alia) the following terms:

On 6 December 2012 the then Governor-General for the Commonwealth of Australia, Her Excellency the Honourable Dame Quentin Bryce, approved a recommendation made by the then Attorney-General for the Commonwealth of Australia, Ms Nicola Roxon MP, that Mr Robert Bromwich SC be appointed as the Commonwealth Director of Public Prosecutions for a period of 5 years commencing on 17 December 2012. The instrument of appointment was signed by the Governor-General on 6 December 2012.

On 2 January 2013, pursuant to the provisions of the Director of Public Prosecutions Act 1983 (Cth) (“the CDPP Act”) the acting Attorney-General of the Commonwealth, Jason Clare, signed a consent in the following terms:

On each of 6 February 2013, 12 June 2013 and 25 August 2014 Mr Lloyd Babb SC, the NSWDPP, signed separate instruments of delegation, the effect of each of which was to delegate, to nominated persons, certain of his functions and responsibilities. In the schedules accompanying each of those three instruments Mr Bromwich SC was one of the persons nominated. Each schedule was in (inter alia) the following terms:

At all times after 5 February 2013 the CDPP appeared in the Local Court as prosecutor in respect of both the Commonwealth and State offences. Counsel briefed by the CDPP appeared at the committal proceedings which were governed by the provisions of the Criminal Procedure Act 1986 (NSW) (“CPA”).

At the conclusion of the prosecution evidence in the committal proceedings the plaintiff pleaded guilty to the Commonwealth offence. Counsel for the plaintiff then submitted to the Magistrate that the State offences should be dismissed on the basis that the CDPP had no power to prosecute them. In written reasons delivered on 16 December 2014, the Magistrate rejected that submission. He found (inter alia) that the CDPP had the lawful authority to conduct the committal proceedings in respect of the State offences. Immediately following that decision, and without the committal proceedings actually concluding, the plaintiff filed the present summons seeking leave to appeal against the Magistrate’s decision.

The Magistrate (commencing at [1]) set out the background to the application made on behalf of the plaintiff:

The Magistrate then said (at [5]-[6]):

The Magistrate went on to consider the respective submissions of the parties before concluding (at [60]):

The primary relief sought by the plaintiff is pursuant to s. 53(3)(a) of the Crimes (Appeal and Review) Act 2001 (“the Appeal and Review Act”). Section 53(3) is in the following terms:

A preliminary issue arises as to whether the Magistrate’s conclusion that the CDPP had the power to prosecute the state offences constitutes an “order” for the purposes of s. 53(3)(a). If I come to the conclusion that it does not, it will be necessary for me to consider the alternative relief sought by the plaintiff pursuant to s. 69 of the Supreme Court Act 1970 (“the SCA”).

Potentially relevant to the issue of whether the Magistrate made an order are the following provisions of the CPA which govern the conduct of committal proceedings:

Counsel for the plaintiff relied principally upon paragraphs [5] and [60] of the Magistrate’s reasons (set out in [18] and [19] above) as constituting an “order” for the purposes of s. 53(3)(a).

It was submitted on behalf of the plaintiff that in considering whether the Magistrate had made an order, it was necessary to have regard to the effect of what the Magistrate did. In this respect, counsel for the plaintiff submitted that the Magistrate’s conclusion had the “profound effect” of denying the plaintiff the benefit of being discharged at the conclusion of the committal proceedings. It was submitted that such effect supported the conclusion that the Magistrate had made an “order” within the meaning of s. 53(3)(a) of the Appeal and Review Act.

Counsel for the plaintiff further submitted that the Magistrate’s decision was in the nature of a judicial act which determined an identifiable and separate part of the proceedings. It was submitted that in concluding as he did, the Magistrate had effectively determined that the committal proceedings were not liable to be dismissed, and that the CDPP had the power to conduct them In advancing these submissions counsel for the plaintiff took me to various authorities, some of which I have referred to below.

Senior counsel for the first defendant submitted that what the Magistrate had done was to conclude that the CDPP had lawful authority to carry on the committal proceedings. He submitted that however this conclusion was categorised, it did not constitute an “order” for the purposes of s. 53(3)(a).

Senior counsel pointed out, in particular, that no decision had been made by the Magistrate as to whether the plaintiff should be committed for trial. In doing so, senior counsel took particular issue with the proposition that the Magistrate’s conclusions had had the “profound effect” upon the plaintiff which had been suggested. Senior counsel argued that such a proposition erroneously assumed that in the event that the Magistrate had decided that the CDPP did not have the power to prosecute the State offences, the plaintiff would inevitably have been discharged. This, it was submitted, overlooked the provisions of s. 61(1)(b) of the CPA which allowed the Magistrate to adjourn the proceedings in the event that the prosecutor did not appear.

Senior counsel also argued that the suggested effect of the Magistrate’s decision upon the plaintiff erroneously assumed that the plaintiff will inevitably be committed for trial. It was submitted that such assumption overlooked, in particular, the provisions of ss. 64-66 of the CPA which govern the conduct of committal proceedings. It was submitted that the most that could be said in the circumstances was that the plaintiff may be committed for trial at the conclusion of the committal proceedings but that the time for determination of that question had not been reached. In short, it was submitted that the Magistrate’s conclusions did not deprive the plaintiff of the opportunity of being discharged.

In R v Lethlean (1995) 83 A Crim R 197 Sheller JA, having reviewed a number of authorities, observed (at 202) that there was no “bright line” which differentiated between judgments and orders on the one hand, and rulings (which do not constitute judgments or orders) on the other. The absence of a clear differentiation had previously been the subject of observations by King CJ in Legal Practitioners Complaint Committee v A Practitioner (1987) 46 SASR 126 where his Honour said:

In R v Bozatsis; R v Spanakakis (1997) 97 A Crim R 296 Gleeson CJ, having referred to the observations of King CJ, said (at 303):

The clarifying observation of Gleeson CJ was adopted by Basten JA in Sasterawan v Morris [2010] NSWCCA 91 who said at [28]:

Accordingly, whilst there is no clear test for determining whether a judicial act constitutes an order the question which is being determined, and the effect of the determination, are important considerations. So much was recognised by counsel for the plaintiff, whose submissions concentrated upon what was said to have been the effect, upon the plaintiff, of the Magistrate’s conclusions.

Whether the CDPP had the power to prosecute the state offences was a discreet issue raised before the Magistrate when he was carrying out his functions pursuant to the CPA. So much is clear from the Magistrate’s approach (at [11]):

The broader (and ultimate) question before the Magistrate was whether the plaintiff should be committed to stand trial for all or any of the State offences. The Magistrate did not determine that question. His reasons (at [61]) contemplated that such a determination would be made after hearing further submissions. In this respect the Magistrate said:

In these circumstances I am unable to accept the submission made by counsel for the plaintiff that the Magistrate’s conclusion has had the profound effect of denying the plaintiff the benefit of being discharged. In my view, such a submission misconstrues the effect of what the Magistrate did. The Magistrate decided the discreet issue which he articulated at [11] of his reasons. That decision did not deny the plaintiff the benefit of a discharge at all. It remains open to the plaintiff to make submissions to the Magistrate as to why he should not be committed for trial. The Magistrate’s reasons (at [61]) clearly contemplate that further submissions will be made.

Even if the Magistrate had accepted the submissions made on behalf of the plaintiff and had determined that the CDPP had no power to prosecute the State offences, such a determination would not have compelled the plaintiff’s immediate discharge. The Magistrate retained a discretion to adjourn the proceedings pursuant s. 61(1)(b) of the CPA. I accept the submission of senior counsel for the plaintiff that whilst the question of an adjournment would obviously have been a matter for the Magistrate’s discretion, the seriousness of the charges against the plaintiff are such that it could be reasonably expected that had the issue of an adjournment arisen, the Magistrate would have given it close and careful consideration.

In my view, all of these circumstances support a conclusion that the Magistrate’s conclusion is not an order for the purposes of s. 53(3)(a): R v Colby and anor. (1995) 84 A Crim R 125 at 138; Director of Public Prosecutions v Schebel [2004] NSWCA 187; (2004) 145 A Crim R 576 at [54]-[59]; 584-585; Nanevski v Haskett [2006] NSWSC 1114 at [25]; Thompson v Director of Public Prosecutions [2014] NSWSC 522 at [39].

In support of his submissions as to the effect, upon the plaintiff, of the Magistrate’s decision, counsel for the plaintiff relied upon observations made by O’Keefe J in Anson v The Director of Public Prosecutions (NSW) [2002] NSWSC 408; (2002) 129 A Crim R 328. Those observations were made in the context of the (now repealed) provisions of s. 104(4) of the Justices Act 1902 (NSW) which were in the following terms:

O’Keefe J said (at [40]; 335):

In my view, his Honour’s observations are distinguishable from the circumstances of the present case on a number of bases. In particular, the decision of the Magistrate in the present case:

I am also unable to accept the submission that the Magistrate’s reasons are to be construed as determining that the proceedings are not to be dismissed. As I have noted, the Magistrate was determining the discreet issue of whether the CDPP had the power to prosecute the State offences. In determining that the CDPP had that power, the Magistrate effectively concluded that the proceedings should not be dismissed on that particular basis. The question of whether, in light of the provisions of ss. 61-66 of the CPA, the plaintiff should be committed for trial has not yet arisen for consideration. It is evident, from his observations at [61] of his reasons, that the Magistrate proposes to consider that issue in light of any further submissions made on the plaintiff’s behalf.

The reliance by counsel for the plaintiff upon the observations of Spigelman CJ in Cheikho v R [2008] NSWCCA 191; (2009) 75 NSWLR 323 in this regard is, in my view, misplaced. That case involved (inter alia) a question of whether the decision of a trial judge upholding the constitutional validity of s. 18(2) of the Telecommunications (Interception and Access) Act 1979 (Cth). Spigelman J said (at [32], citations omitted):

In reaching that conclusion, his Honour referred to an earlier decision of R v RAG [2006] NSWCCA 343. The decisions in both Cheikho and RAG involved a consideration of whether the decision in question constituted an “interlocutory judgment or order” (within the meaning of s. 5F of the Criminal Appeal Act 1912) as opposed to a ruling on the admissibility of evidence. No such issue arises in the present case.

For all of these reasons, the conclusions of the Magistrate do not constitute an “order” for the purposes of s. 53(3)(a) of the Appeal and Review Act. Accordingly, the plaintiff is not entitled to relief under that Act.

Section 69 of the SCA, pursuant to which the plaintiff seeks alternative relief, is in the following terms:

In short, counsel for the plaintiff submitted that I should find that in concluding as he did, the Magistrate had failed to exercise his jurisdiction under s. 61 of the CPA. It was submitted that such a failure had arisen as a consequence of an erroneous interpretation of the CDPP Act, and that in these circumstances relief under s. 69 of the SCA was available.

Senior counsel for the first defendant submitted it was not sufficient for the plaintiff, for the purposes of relief under s. 69 of the SCA, to show an error of law, and that the plaintiff was required to establish jurisdictional error. It was submitted that in the present case, jurisdictional error could only be established if a conclusion were reached that the Magistrate’s ruling fell outside the limits of the functions and powers conferred on him.

It was submitted that the Magistrate’s decision was about a matter that he was authorised to determine and that there had been no actual or constructive failure on his part to exercise his jurisdiction under the CPA. It was submitted that even if his decision was reflective of error, it was an error within jurisdiction as opposed to a jurisdictional error and that accordingly, relief under s. 69 was not available.

In Thompson (supra) Davies J, having reviewed the relevant authorities, said the following in respect of relief under s. 69 of the SCA (at [32]):

It was not suggested by counsel for the plaintiff that the Magistrate’s decision fell outside the limits of the functions and powers which were conferred on him. What was submitted was that the Magistrate incorrectly decided the issue before him. I accept the submission made by senior counsel for the plaintiff that incorrectly deciding an issue which the Magistrate was authorised to determine would, if it were made out, constitute an error within jurisdiction, as opposed to jurisdictional error. It follows that even if the plaintiff’s position as to the power of the CDPP to prosecute the State offences is correct, no relief is available under s. 69.

In circumstances where I have concluded that neither the principal nor the alternative relief sought by the plaintiff is available, it is unnecessary for me to consider the question of whether the CDPP had the power to prosecute the State offences before the Magistrate.

I make the following orders: