Osman v Director of Public Prosecutions (No 2)

1. [1]

   By his second amended summons filed on 25 July 2016, the plaintiff challenges by way of judicial review pursuant to s 69 Supreme Court Act 1970 (NSW) the decision of Deputy Chief Magistrate O’Brien made on 1 September 2015 granting leave under s 263(2) Criminal Procedure Act 1986 (NSW) (“the CP Act”) “for the [defendant] to make an election to have offences pending against [the plaintiff] in proceedings 828859983 dealt with on indictment”.

Preliminary

1. [2]

   Counsel agree that his Honour’s decision “has a discernible or apparent legal effect upon rights” in the second sense discussed in Hot Holdings Pty Ltd v Creasey [1996] HCA 44; 185 CLR 149 at 159 – 160. In that case, the majority of the High Court of Australia (Brennan CJ, Gaudron and Gummow JJ) described this category of case in the following terms:

2. [3]

   I am satisfied that the decision under s 263(2) is sufficiently connected with the ultimate decision of the plaintiff’s guilt and its consequences in terms of conviction and sentence to have a discernible legal effect on his rights. The fifth sequence of the court attendance notice H288599893 is a charge of supplying a prohibited drug contrary to s 25(1) Drug Misuse and Trafficking Act 1985 (NSW) (“the DMT Act”), carrying a maximum penalty of imprisonment for 15 years. If dealt with summarily, the maximum penalty that may be imposed by the Local Court is a term of imprisonment of 2 years: CP Act, ss 260, 267(2) and Sch 1, table 1, Pt 6, cl 29; the DMT Act, s 31. Moreover, the power of the Local Court to structure a sentence if the plaintiff is convicted after a summary hearing is limited in the circumstances of this case by s 58 Crimes (Sentencing Procedure) Act 1999 (NSW) as the present offences were allegedly committed on 14 June 2015 when the plaintiff was serving a sentence for another crime on parole.

3. [4]

   The earlier history of these proceedings in this court is dealt with in my judgment in Osman v Director of Public Prosecutions [2016] NSWSC 959. Following Hall v R [2015] NSWCCA 298 (“Hall”), or at least applying its reasoning, I held that no appeal lay under s 53(3)(b) Crimes (Appeal and Review) Act 2001 (NSW) from O’Brien DCM’s decision.

Relevant legal principles

1. [5]

   To found an entitlement to an order in the nature of certiorari, the plaintiff asserts both jurisdictional error and error on the face of the record. Indeed, the various grounds were advanced with a great deal of elaboration in thorough written submissions prepared by Mr Parkin of Counsel. At the outset it is well to bring to mind the limitations on the concept of jurisdictional error when certiorari is sought to quash the order of an inferior court as opposed to an administrative tribunal. The principles are fully discussed in the leading case of Craig v South Australia [1995] HCA 58; 184 CLR 163 (“Craig”) at 176 – 180 by an unanimous High Court of Australia. It is unnecessary to set out lengthy passages for the purposes of this judgment. However, the identification of principles there discussed pertinent to this judgment requires me to set out some shorter passages. At 177 the Court said:

Interpretation and construction of s 263 Criminal Procedure Act

1. [6]

   On 30 November 2015, the Court of Criminal Appeal handed down its decision in Hall v R [2015] NSWCCA 298 dealing, inter alia, with the “proper construction and application of s 263(2)”. The leading judgment was given by Johnson J, with whom Simpson JA and Davies J agreed. Having refused leave to appeal under s 5F Criminal Appeal Act 1912 (NSW) from a decision of a Magistrate granting leave to the prosecutor under s 263(2) CP Act, on the ground that the appeal was incompetent, Johnson J with the agreement of the other members of the court went on to say the following:

2. [7]

   Chapter 5 of the CP Act establishes a regime for the disposal of indictable offences listed in Tables 1 and 2 of Sch 1 to the CP Act summarily, unless the prosecutor or the defendant, in Table 1 offences, or the prosecutor, in Table 2 offences, elects to have the offence dealt with on indictment. Section 263 provides for the time for making an election to be fixed the Local Court is in the following terms:

3. [8]

   Under cl 5.3 of Practice Note LC Crim 1, an election is to be made “on or by the first return date after an order is made for the service of the brief of evidence (ordinarily, the second mention)”. The parties agree this required an election to be made in the present case no later than 22 July 2015. But it was not until 5 August 2015 that the prosecution (the plaintiff was content for it to be dealt with summarily) indicated to the Court that it wished to make an election. Obviously, it was by then out of time and required leave. The plaintiff did not consent and the application for leave was heard on 27 August 2015.

4. [9]

   In Hall, Johnson J thought it “noteworthy” that leave may be granted by a Registrar: at [40]. His Honour also noticed the absence of any manner and form express requirements for making an election, but said:

5. [10]

   It is apparent from Johnson J’s reasoning that an explanation for non-compliance with s 263(1) is a consideration which the Local Court is bound to take into account in making a decision under this section in the Minister for Aboriginal Affairs v Peko Wallsend Limited [1986] HCA 40; 162 CLR 24 (“Peko Wallsend”) sense (see 39 – 41). I draw this conclusion from what Johnson J, said (at [60] – [62]):

The evidence before me

1. [11]

   Jurisdictional error may be established by any relevant evidence, but error of law on the face of the record may only be established by reference to the record of the inferior court. Bearing these rules in mind, the plaintiff read without objection two affidavits sworn by him on 25 September 2015 and 28 January 2016 respectively. These affidavits attached court attendance notice H288599893; the facts sheet prepared by investigating police; his criminal record; the transcript of proceedings in the Local Court of 27 August 2015; certificates of analysis of drugs seized at the time of his arrest and the Deputy Chief Magistrate’s judgment. The defendant read, also without objection, the affidavit of Karen Parouchais, solicitor affirmed on 25 November 2015 annexing the written submissions relied upon by the defendant before the Local Court.

2. [12]

   I am satisfied that the record for present purposes consists only of the court attendance notice, the learned Deputy Chief Magistrate’s judgment including his reasons and the form of the order pronounced by him (Supreme Court Act, ss 69(3) and (4)).

3. [13]

   The defendant’s application for leave was heard on 27 August 2015 and promptly decided by the provision of his Honour’s comprehensive judgment on 1 September 2015. The order pronounced by the Deputy Chief Magistrate is in the following terms:

Facts established by the evidence before me

1. [14]

   By Court attendance notice H288599893 the plaintiff is charged with 5 offences referrable to events occurring at around 12:15 am on 14 June 2015 at Surry Hills. The details of the sequences are as follows:

   1. (1)

      Possessing a prohibited drug, namely cocaine, contrary to s 10(1) of the DMT Act.

   2. (2)

      A second count of possessing a prohibited drug contrary to s 10(1) of the DMT Act. Again, the drug was cocaine.

   3. (3)

      Dealing with property suspected to be the proceeds of crime, contrary to s 193(c)(1) of the Crimes Act 1900 (NSW). This relates to $790.90 found in a bag in his possession.

   4. (4)

      A second count of property suspected to be the proceeds of crime, contrary to s 193(c)(1) Crimes Act. This is a sum of $11,320 found on searching the plaintiff’s car.

   5. (5)

      An offence of supplying a prohibited drug contrary to s 25(1) of the DMT Act. Particulars of this offence allege a deemed supply under s 29 of the DMT Act. The drug relates to sequences 1 and 2.

2. [15]

   Counsel agree that sequences (1) to (4) are summary offences, not subject to Chapter 5 of the CP Act. Only sequence (5) is a table offence, mentioned in table 1, which either the prosecution or the plaintiff could elect to be dealt with on indictment.

3. [16]

   The prosecution case is that the plaintiff was observed by police driving a vehicle in excess of the speed limit in Surry Hills in the early hours of Sunday 14 June 2015. They followed, activated the warning lights on the police vehicle and pulled the plaintiff over to conduct a random breath test. The officers formed the opinion that the plaintiff was extremely nervous. He was asked to alight from his vehicle when police observed a clear resealable plastic bag containing what appeared to be, and was, a block of cocaine in the driver’s seat. He was arrested and cautioned, but made admissions in relation to the personal use of cocaine. A lawful search of the person of the accused revealed nothing more of interest, but his satchel contained the sum of $790.90. The lawful search of the vehicle revealed a secret compartment in the centre console. A false bottom was removed revealing a blackberry mobile phone, one heat sealed-plastic bag containing three smaller resealable bags of cocaine and cash in the sum of $11,350.

4. [17]

   When weighed at the police station, the cocaine yielded a combined total of 3.7 grams, an amount in excess of the trafficable amount. Subsequent expert analysis put the combined weight at 2.89 grams, less than the trafficable amount. This amount is greater than the small quantity, which means the offence remains a table 1 offence. But as the amount is less than trafficable quantity of cocaine, the prosecution does not have the deeming provision of s 29 of the DMT Act available for the facilitation of proof.

5. [18]

   Significantly, at the time of the alleged commission of these offences, the plaintiff was at liberty on parole for various robbery offences for which he had been sentenced to a total effective sentence of 7 years commencing on 9 February 2010 and expiring on 8 February 2017. The effective combined non parole period was one of 3 years and 6 months. This is significant because it brings into play, as I have said already, the provisions of s 58 of the Crimes (Sentencing Procedure) Act.

6. [19]

   When the matter was called on for hearing before the Deputy Chief Magistrate, Mr Ayache (the solicitor for the plaintiff in the hearing before me) informed the court that he had “received no evidence” (1.30T). The Deputy Chief Magistrate said that was because he had only directed the service of written submissions. The prosecution written submissions (attached to Ms Parouchais’s affidavit) did not distinguish between the 5 sequences and in particular they did not make clear that sequence 5 was the only table matter. Rather, they dealt with the charges compendiously except in paragraph 14(a) where emphasis was laid on the supply charge carrying a maximum penalty of 15 years imprisonment.

7. [20]

   No explanation was proffered for the “delay” other than, perhaps, pointing out that “the DPP is only out of time by 2 weeks”. The totality of the circumstances were relied upon as amounting to special circumstances, and in terms the prosecution sought leave “to make an election to prosecute the matter on indictment out of time” without separating sequences 1 to 4 from sequence 5. Reliance was placed upon Magistrate Crompton’s decision in DPP v Hall, Jason. Overall, the submissions focused on the appropriateness of proceeding on indictment; as did the oral submissions of Ms Smith, solicitor, who appeared on the hearing for the Prosecution. She too, emphasised that the greatest delay is “no more than a couple of weeks” (2.25T).

8. [21]

   Mr Ayache pointed out that the drug analysis certificate demonstrated the quantity involved was less than a trafficable quantity. I understand this to be a submission on the appropriateness of proceeding on indictment. He also drew the Court’s attention to the consideration that sequence 5 was the only alleged offence carrying a penalty greater than 2 years. He submitted that s 263 was dealing with “time or timing” and special circumstances must relate to that matter. He again pointed out that there was no affidavit evidence, and “no explanation as to why” the matter was not referred to the Office of the Director of Public Prosecutions (“ODPP”) in sufficient time for an election to be made.

9. [22]

   At this point Ms Smith interrupted and said the following:

10. [23]

    As I have said, the Deputy Chief Magistrate gave comprehensive, careful reasons on 1 September 2015 (Director of Public Prosecutions (NSW) v Osman (Local Court (NSW), 1 September 2015, unrep)). It is important to record that he found that the plaintiff had been arrested on 14 June 2015 and charged with the 5 offences in the court attendance notice. He also said the following at [2] – [3]:

11. [24]

    His Honour found (at [7]) that an election ought to have been made on or by 22 July 2015. He said “it is clear” that the election was not made before that date and it was not until 5 August 2015 that the intention to make that election was indicated. His Honour identified the issues at [8] as whether as a matter of construction special circumstances warranting the grant of leave are “concerned only with a question of “time”” and whether on the correct construction of the section special, circumstances had been demonstrated

12. [25]

    In resolving the issues his Honour said the following at [13]:

13. [26]

    His Honour, as I have said referred to Magistrate Crompton’s decision in DPP v Hall and said at [19]:

14. [27]

    At [20] his Honour said:

The challenge to the Local Court’s decision

1. [28]

   Although there are ten grounds of vitiating error advanced, Mr Parkin helpfully grouped them into three substantive challenges of either jurisdictional error or error on the face of the record. They are as follows:

2. [29]

   Ms Mitchelmore of Counsel, who appears for the defendant does not dispute that sequences 1 to 4 are not table offences. She accepts the analysis of Mr Parkin that offences under s 10 of the DMT Act and s 193C of the Crimes Act are to be dealt with summarily before the Local Court.

3. [30]

   Ms Mitchelmore argued that as a matter of construction of the order, notwithstanding his Honour’s use of the plural, “offences pending … in proceedings H288599893”, I should read the expression down to mean only sequence 5. After all, so the argument ran, that was the focus of the argument; on the face of the court attendance notice, it is the only matter identified as a table matter; and as an experienced judicial officer, the Deputy Chief Magistrate would be well aware that sequences 1 to 4 were summary matters. Indeed Mr Ayache pointed that out in argument in so many words.

4. [31]

   I accept that it seems improbable that a judicial officer as experienced as the Deputy Chief Magistrate would overlook the consideration that only sequence 5 was a table matter. On the other hand, in an extremely busy court unless the matter was explicitly drawn to his attention his Honour may not have found it necessary to grapple with the technicalities of the other matters. Both parties focused on sequence 5, however as I have said the ODPP sought leave to make an election to prosecute “the matter” on indictment. A reference to the matter would generally be taken as a reference to the whole of the dispute. Mr Ayache pointed out that sequence 5 “is the only one out of all the sequences that carries as a sentence in excess of 2 years”. He did not go on to express what may have been implicit in that statement that none of the other sequences were “table matters”. In any event his Honour was left with the impression that it was not disputed that the “drug offences … are table offences” [Emphasis added.]

5. [32]

   Looking at how the matter was presented by the parties, I am satisfied that, with respect, through inadvertence, the learned Deputy Chief Magistrate treated all sequences as susceptible to a grant of leave under s 263(1) CP Act. This I think falls into a third category of jurisdictional error by an inferior court identified in Craig (177–8) of an implicit misconstruction of the statute leading to a misconception (through inadvertence in this case) of the extent of the Local Court’s powers: see Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at 574 [72].

6. [33]

   It may be that the same matter, even when one puts to one side reference to the transcript and written submissions, constitutes error of law on the face of the record. A consideration of the court attendance notice, undoubtedly part of the record, demonstrates that only sequence 5 is identified as a table matter. Obviously, his Honour’s reasons form part of the record and the ordinary meaning of the language used suggests leave was granted in respect of more than one offence. As I say, however, the source of the error seems to have been inadvertence or mere oversight on the part of the learned Deputy Chief Magistrate.

7. [34]

   Ms Mitchelmore argued that if I came to this conclusion, it was not necessary to quash the whole legal effect of the order pronounced by the Deputy Chief Magistrate. She called in aid, the “doctrine of substantial severance”. It is perhaps convenient to consider this argument now. The doctrine generally operates in conjunction with provisions such as s 32 of the Interpretation Act 1987 (NSW) to save legislation, part of which has been declared unconstitutional or delegated legislation found to be ultra vires. It has, however, been applied to warrants issued in excess of power: Parker v Churchill [1986] FCA 90; 9 FCR 334 at 350; including warrants assumed to be a judicial order: Peters v Attorney General of New South Wales (1986) 16 NSWLR 24; cf Re Australian Industrial Relations Commission; Ex parte Smith [2004] FCAFC 271; 134 IR 316 at 336 [86] – [88] (“Ex parte Smith”), where the Full Court of the Federal Court applied the doctrine to orders made by the Full Bench of the Industrial Relations Commission tainted by jurisdictional error, through inadvertence it might be added. There seems no reason why the doctrine could not apply to orders of the Local Court in appropriate cases.

8. [35]

   It is obvious that an order of the court of ordinary jurisdiction is not an instrument for the purpose of s 32 Interpretation Act; see s 3 of that Act. However, the doctrine is one also known to the common law. In Harrington v Low [1996] HCA 8; 190 CLR 311 at 328 (“Harrington”), a plurality of 6 justices of the High Court said:

9. [36]

   In my opinion quashing so much of his Honour’s orders as applies to sequences 1 to 4 effects “no change to the substantial purpose and effect of” the order; “there is not left substantially a different [order] as to the subject matter dealt with from what it would otherwise be”. As Ms Mitchelmore pointed out, if the plaintiff is committed for trial on sequence 5, sequences 1 to 4 may be specified on a certificate under s 166 CP Act and transferred to the District Court if the plaintiff is committed on sequence 5.

10. [37]

    In my judgment there is an important difference between the construction of s 263 CP Act preferred by the Deputy Chief Magistrate, uninstructed by the subsequent decision of the Court of Criminal Appeal in Hall, and the latter decision itself. The ultimate statutory test is the same: whether special circumstances exist to extend time. But rather than having regard to the totality of the circumstances established, bearing in mind that s 263 is a case management provision, the Court of Criminal Appeal’s construction is more nuanced. First, the Court of Criminal Appeal found by implication from the subject matter, scope and purpose of the provision, that the Local Court was bound to take into account (as a relevant consideration) the explanation proffered for the delay so as to justify a favourable decision.

11. [38]

    Notwithstanding Johnson’s J’s employment of the phrases “focus of attention” (at [49]), “necessary to consider” (at [55]) and “a primary focus of the decision” (at [56]), I accept Ms Mitchelmore’s submission that the consideration of a proffered explanation and the assessment of its satisfactoriness is not a “fundamental element” or “focal point” of the type discussed by Mason J (as his Honour then was) in R v Hunt; ex parte Shawn Investments Pty Ltd [1979] HCA 32; 180 CLR 322 at 329; see Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; 86 NSWLR 527 at 568 [191] – 576[235]. I have accepted this essentially because the “relevant consideration” identified by Johnson J arises by implication rather than as “a single discreet consideration specified” by the section: Warkworth Mining at 573 [217]; James Hardie & Co Pty Ltd v Roberts [1999] NSWCA 314; 47 NSWLR 425 at 89. It seems to me, accordingly, that the reasonableness of the explanation for the relevant delay need not be determinative, nor is it, as Johnson J’s judgment makes clear, a single, or signal, factor to be taken into account. It must be taken into account but the weight to be given it is a matter for the Local Court, not the Supreme Court on judicial review: Peko Wallsend at [41].

12. [39]

    Secondly, another point of difference between the approach of the Deputy Chief Magistrate and the Court of Criminal Appeal is the latter’s emphasis that the appropriateness of the election was not a focus of attention. This is fundamental. The questions of whether to bring charges, what they should be and how to prosecute them are matters for the prosecutorial authorities and not for the court. In fairness it should be pointed out that nothing in the decision under review suggests his Honour trespassed on the province of the executive in this way; quite the contrary. Consistently with what was said at [57] in the Court of Criminal Appeal, the Deputy Chief Magistrate’s focus was on “the interests of justice”. At [57], Johnson J said:

13. [40]

    As O’Brien DCM did not identify the need for an explanation for the delay in making the election as a “primary focus” of the exercise of the s 263(2) discretion, it may be said that he fell into an error of law, which error was apparent on the face of the record. However, not every such error leads to invalidity. Only errors “material to the decision in the sense that it contributes to it so that, but for the error the decision could have been or might have been different” vitiate a decision: Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 353.

14. [41]

    Misconstruing s 263 by failing to advert to the need to focus on the explanation for the delay can be seen in this case to have contributed nothing to the decision actually made, simply because his Honour did take into account the explanation proffered by Ms Smith from the bar table, and to the extent to which there may have been an error of law in his Honour’s construction it was not material in the relevant sense and I reject this ground of challenge.

15. [42]

    The final group of grounds seeks to vitiate the finding of special circumstances. Although summarised as having three parts (see [28] above) the grounds are conveniently divided into two propositions. The first proposition is that there was no evidence of an explanation provided as to why the relevant election was not made within the time fixed by s 263(1); the solicitor advocate’s conclusionary statement about “administrative error” was not evidence because it was clear that the plaintiff’s solicitor was objecting requiring strict proof. The second aspect was that because the certificates of analysis undermined the averment of a greater than trafficable quantity of cocaine, the charge of supply could not be made good at a trial.

16. [43]

    As I have pointed out, the learned Deputy Chief Magistrate proceeded on the basis that the plaintiff did not dispute the explanation proffered belatedly from the bar table by Ms Smith. The relevant portions of the transcript are set out above (see [22]). With respect, his Honour was in error saying that the explanation was not disputed. It is clear from a combination of factors that the plaintiff was insisting on strict proof of any explanation. The factors were: the (incorrect) argument that s 263(2) was concerned with matters of time and matters of time only; the statement at the commencement of the hearing by Mr Ayache that he had seen no evidence; and Mr Ayache’s response to his Honour’s question about whether the explanation was disputed. That response made it clear to my mind that it was. It may be accepted that his Honour’s error about that was an error within jurisdiction, as it were. However, the question is, was there evidence of an explanation, and if not, having regard to the construction of s 263 CP Act provided by Hall, did that mean that there was no evidence from which an inference of special circumstances could be drawn?

17. [44]

    It is worth repeating that in accordance with Craig, what s 263(2) CP Act required before leave could be granted was for the Local Court to be satisfied that special circumstances exist. Thus, this is not a jurisdictional fact to be determined by this Court. And as the Local Court is a court of ordinary jurisdiction as opposed to a tribunal, the Local Court has “authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine.” (Craig at [179]). Importantly, “a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction … will not ordinarily involve jurisdictional error.” (Craig at [180]).

18. [45]

    These statements of principle strongly suggest that even were there no evidence of an explanation, an error in that regard would not constitute vitiating error. Moreover, as the evidence led before the Deputy Chief Magistrate does not form part of the record and as his Honour’s reasons record the explanation proffered by Ms Smith the plaintiff would be unable to demonstrate an error of law on the face of the record. These considerations are powerful obstacles to the plaintiff succeeding on this part of his third group of grounds.

19. [46]

    To put it another way, notwithstanding the importance of an explanation in the application of s 263 CP Act, its absence will not vitiate on administrative law grounds a finding of special circumstances.

20. [47]

    It is well established that “a Tribunal which decides a question of fact when there is “no evidence” in support of the finding makes an error of law” Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at 418 [91]. That case concerned a statutory appeal limited to a question with respect to a matter of law from the Consumer Traders and Tenancy Tribunal to the Supreme Court. I bear in mind that I am not exercising appellate jurisdiction, but am concerned with the exercise of the Court’s original supervisory jurisdiction.

21. [48]

    It may be accepted that there was no sworn testimony in affidavit or oral form explaining why no election was made in the time fixed under s 263(1) CP Act in this case. However where an explanation for “delay” is a factor to be taken into account by a court exercising a discretion in the exercise of its procedural or case-management powers, it may be sufficiently furnished by the unsworn statement of the senior lawyer responsible from the bar table: Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; 187 FCR 261 at [47] – [48]; and [52], Singler v Ferguson [2010] NSWCA 325 at [139]; but cf AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [106]. A personal explanation of an omission to take a necessary step by the lawyer responsible is acceptable because a lawyer is an officer of the court; only those found to be fit and proper persons may hold that office. However, the explanation here did not come from the senior lawyer responsible for the case. Ms Smith was the advocate at court. It was apparent from what she said that she was not the lawyer with the carriage of the matter, nor the lawyer responsible for any oversight with regard to the election. Moreover, describing the omission to make the election as “administrative error” hardly explained anything, but I will put this consideration to one side.

22. [49]

    In circumstances where it is clear that Mr Ayache was objecting to the explanation being provided informally as it was, it was, with respect, an error for the Deputy Chief Magistrate to rely upon it. It was clear his Honour appreciated it was not evidence. He relied upon the explanation because he, erroneously, thought it undisputed. The effective error is that latter mistake. That was an error of fact, not law and with respect, clearly an error within jurisdiction. The wrongful admission, or rejection of evidence by an inferior court does not constitute jurisdictional error.

23. [50]

    The plaintiff sought to elevate the Deputy Chief Magistrate’ error in accepting the statement form the bar table as a denial of natural justice. In some circumstances the absence of notice of an explanation and the denial of an opportunity to cross-examine on it may be capable of constituting a breach of the rules of natural justice, but I am not satisfied that those matters rise to that level in the circumstances of this case. No order had been made or sought for the exchange of evidence as opposed to submissions. The explanation was given in Mr Ayache’s presence in court and he was given an explicit opportunity to answer it which opportunity he took.

24. [51]

    The effect of the erroneous acceptance of the explanation from the bar table, however, means that there was no evidence of the explanation for the failure to make the election in time. But the question is whether there was “no evidence” to support an inference of “special circumstances” rather than “no evidence” of a satisfactory explanation, notwithstanding the potential significance of the provision of such an explanation. In my judgment there was ample evidence to support the inference his Honour drew.

25. [52]

    It might also be said that it would have been open to the Deputy Chief Magistrate to draw an inference that the explanation for the failure to make the election in time is probably oversight. This inference could readily be drawn from two other matters his Honour considered important: first, that the proceedings were in their “infancy” when the s 263(2) application was made; and secondly, that the election was sought to be made only two weeks after it was due. The early stage in the proceedings at which the application was made and the shortness of the delay, as I have said strongly suggests that it was professional oversight for which “administrative error” was doubtless a euphemism.

26. [53]

    This brings me to the plaintiff’s last point which is that leave should not have been granted because sequence 5 was bound to fail given the certificates of analysis demonstrated the cocaine was less than a trafficable quantity.

27. [54]

    It is difficult to see how this “futility” argument constitutes jurisdictional error, even were it correct. I am of the view that it does not. Nor is it an error of law in the face of the record.

28. [55]

    If the prosecution cannot prove trafficable quantity then it cannot rely upon the s 29 DMT Act deeming provision. However, the prosecution may yet succeed in proving supply from other circumstantial evidence, which a jury may consider powerful. For example that: the larger portion of the drugs were located in a secret compartment in the console of the defendant’s vehicle; they were separated into portions in clip lock bags inside another sealed bag; they were found with a large quantity of cash; a blackberry personal electronic device or phone was also in the secret compartment; and for what it is worth, the police officers will give evidence from which a jury may draw an inference of nervous anxiety at the time of arrest which need not be an insignificant circumstance. Were futility capable of constituting jurisdictional error in this process, which I doubt, I am not satisfied the argument is made out.

29. [56]

    I should also add that the learned Deputy Chief Magistrate quite rightly cut Mr Ayache off in the development of his futility argument. In our system of criminal justice it is for the prosecution to evaluate the evidence, frame and prosecute the charge. These executive discretions are not reviewable by a court other than in exceptional cases involving bad faith or abuse of process. It is for this reason that the appropriateness of the election is not a focus of attention in the exercise of the s 263(2) discretion.

A further consideration

1. [57]

   As Johnson J pointed out in Hall at [64], even a refusal of leave under s 263(2) does not impede the prosecution from bringing an ex officio indictment in the District Court in the same matter: Iqbal v R [2012] NSWCCA 72 at [15]– [24]. This may have provided a discretionary ground for refusing relief otherwise made out.

2. [58]

   In the circumstances I will grant relief to limit the legal effect of the order in the Local Court to a grant of leave to proceed on indictment with sequence 5 only.

Costs

1. [59]

   Before pronouncing formal orders, I will deal with the question of costs. When this matter was adjourned on 1 July 2016, I reserved the question of costs thrown away by reason of the adjournment. What follows will assume familiarity with my earlier reasons. I have considered the evidence in the affidavit of Marley Zelinka affirmed on 22 August 2016 and of Michael Ayache sworn on 29 August 2016. There seems to be no disagreement between them as to the circumstances relevant to the question of the reserved costs. The proceedings commenced by summons on 28 September 2015 were brought as an application for leave to appeal from an interlocutory order of the Local Court under Part 5 Crimes (Appeal and Review) Act 2001 (NSW).

2. [60]

   Both parties became aware of the Court of Criminal Appeal’s decision in Hall during the preparation of the proposed appeal and indeed it was relied upon by the plaintiff in his written submissions filed on 16 May 2016. Mr Ayache did not appreciate, at that time, the difficulty it posed for the appeal. The prosecution challenged the competency of the appeal in written submission filed on 20 June 2016, 10 days before the hearing date. When the matter came before me on 1 July 2016, Mr Ayache accepted that the Court of Criminal Appeal’s decision was a formidable obstacle in the path of the proposed appeal (Osman v Director of Public Prosecutions [2016] NSWSC 959 at [13]) I found it unnecessary, however, to rule upon the question of competency and Mr Ayache “elected”, as it were, to change tack from an application for leave to appeal to an application for judicial review which I permitted for reasons then given.

3. [61]

   Appeals under Part 5 of the Crimes (Appeal and Review) Act are dealt with under part 51B Supreme Court Rules 1970 (NSW). Those rules contain no counterpart to r 50.16A Uniform Civil Procedure Rules 2005 (NSW) concerned with appeals to courts more generally. Part 51B of the Supreme Court Rules imposes no obligation on a defendant to raise the question of competency early, supported by costs sanctions. It does not seem appropriate to transpose r 50.16A to the Supreme Court Rules. Accordingly, I will decide the question of the reserved costs on general principles.

4. [62]

   It is difficult to see how the plaintiff can avoid an adverse order for wasted costs. Whatever the circumstances, he abandoned the proposed appeal on 1 July 2016 seeking leave to challenge the decision in the Local Court on judicial review grounds. This change of tack necessitated an adjournment. By the application of general principle, the plaintiff ought to be responsible for the costs thrown away by reason of the adjournment and I will make that order in due course.

5. [63]

   I am also of the view that substantially the plaintiff has lost the case. True, I will make an order limiting the effect of the order pronounced in the Local Court, but a suitable amendment could doubtless have been agreed upon in the Local Court had that been the only matter in issue. Costs should follow the event.

Orders

1. [64]

   My orders are:

   1. (1)

      Declare that the order pronounced in the Local Court on 1 September 2015 is of no force and effect insofar as it relates to the offences alleged in sequences 1 to 4 in proceedings H288599893;

   2. (2)

      The summons is otherwise dismissed;

   3. (3)

      The plaintiff is to pay the defendant’s costs of the proceedings including the costs reserved on 1 July 2016.