El-Ali v Commonwealth Director of Public Prosecutions and the Local Court of NSW (No 2)

On 5 June 2015 I dismissed an application made by the plaintiff for an order, pursuant to s. 53(3)(b) of the Crimes (Appeal and Review) Act 2001, that he be granted leave to appeal against a decision of Magistrate Favretto delivered on 16 December 2014 in the Local Court: El-Ali v Commonwealth Director of Public Prosecutions and the Local Court of NSW [2015] NSWSC 671. I also dismissed the plaintiff’s application for relief under s. 69 of the Supreme Court Act 1970 (NSW).

When the matter was previously before me one of the submissions advanced on behalf of the plaintiff was that the Commonwealth Director of Public Prosecutions (“CDPP”) did not have the power to prosecute the plaintiff for offences against NSW legislation because the relevant charges had been laid by someone other than the CDPP. In circumstances where I ultimately decided that the relief sought by the plaintiff was not available, it was not necessary for me to consider the issue of the extent of the DPP’s powers.

On 26 June 2015, following delivery of my previous judgment, the plaintiff commenced the present proceedings seeking:

In support of the orders sought, the plaintiff relies principally upon the submission which was previously made and which is set out in [2] above. The orders sought by the plaintiff are opposed by the CDPP who is named as the first defendant. The second defendant has filed a submitting appearance.

When the parties came before me on 10 August 2015 it was agreed that I would determine the matter on the basis of:

The background to the matter is set out in full at [4]-[19] of my previous judgment. In the circumstances, it is appropriate that I set out those paragraphs again:

Section 6(1) of the Act is in the following terms:

In view of the submissions advanced on behalf of the plaintiff, three other provisions of the Act are relevant. The first and second are ss. 9(5) and (5A) respectively which are in the following terms:

The third is s. 14 which is in the following terms:

The fundamental submission of counsel for the plaintiff was that the words “institute and carry on” which appear in s. 6(1)(m) of the Act are to be read conjunctively, as opposed to disjunctively. In other words, it was submitted that properly construed, s. 6(1)(m) meant that that the CDPP could “carry on” only those proceedings which he himself had instituted. Adopting this construction it followed, in counsel’s submission, that because the proceedings against the plaintiff for the State offences were not commenced by the CDPP, the CDPP had no power to carry them on, and thus no power to conduct the committal proceedings in respect of those offences before the Magistrate.

It was submitted by counsel for the plaintiff that although the words “institute and carry on” as they appear in s. 6(1)(m) could be read disjunctively if considered in isolation, such a construction should not be adopted in light of the provisions the Act as a whole. It was submitted, by reference to various authorities, that the meaning of a statutory provision was to be determined by reference to the language of the instrument when viewed as a whole and that, when this approach was taken, the disjunctive construction advanced by the CDPP could not be accepted.

In developing these submissions, counsel referred to various aspects of the drafting of s. 6 which were said to support the construction which was advanced. It was pointed out, in particular, that in a number of provisions within s. 6 the draftsman had deliberately separated the function of instituting proceedings from the function of carrying on such proceedings. By way of example, counsel pointed out that:

Counsel submitted that in contrast, each of ss. 6(1)(m) and 6(1)(ma) provided for both functions within the same provision. It was submitted that these variations in drafting were explicable only on the basis that the Parliament intended that the power of the CDPP to carry on proceedings for State offences was conditional upon the relevant charges having been brought by the CDPP, and not by someone else.

Counsel further submitted that a disjunctive construction would lead to anomalies in light of ss. 9(5) and (5A) of the Act. By reference to those provisions, counsel submitted that the CDPP may carry on proceedings instituted by another person (s. 6(1)(e)), and may subsequently decline to carry on those proceedings (s. 9(5A)). However, it was submitted that if the CDPP’s argument was to be accepted, the CDPP was able to carry on proceedings for State offences instituted by someone else in circumstances where there was no power (be it in s. 9 or elsewhere) to decline to further carry on those proceedings.

Counsel further submitted that the construction advanced on behalf of the CDPP would undermine the effectiveness of the notice provisions contained in s. 14(1) of the Act. It was submitted, in particular, that having regard to s. 14(1) the CDPP was required to notify the court when he had decided to carry on the prosecution of a Commonwealth offence, or proceedings for the recovery of a pecuniary penalty, but was not under any similar requirement where he had elected to carry on a prosecution for a State offence. Counsel submitted that the absence of a notice requirement was explained by the fact that no notice was, in fact, required in respect of proceedings for State offences because such matters could be prosecuted by the CDPP only if he had instituted those proceedings. It was submitted that what was an “obvious absurdity” could only be avoided if a conjunctive construction was applied to the words “institute and carry on”.

In advancing these submissions counsel accepted that the decision of the Qld Court of Appeal in R v Dexter [2002] QCA 540 was at odds with his position. However, he submitted that a proper reading of the decision in Dexter made it clear that the provisions of s. 6(1)(m) were not fully considered in that case and that in these circumstances, it was open to me to decline to follow it.

Senior counsel for the CDPP accepted that prerogative relief was available in relation to committal proceedings. However he emphasised the significance of the discretionary considerations which arise in such circumstances: Nanevski v Haskett [2006] NSWSC 1114 at [28] per McClellan CJ at CL; Tez v Longley [2004] NSWSC 74; (2004) 142 A Crim R 122 at [13]; [18]-[27] per Shaw J.

As to the principal submissions advanced on behalf of the plaintiff, senior counsel for the CDPP argued that an interpretation of s. 6(1)(m) of the Act which meant that the plaintiff’s plea of guilty to the Commonwealth offence in the course of the committal proceedings ipso facto ended the role of the CDPP as prosecutor of the State offences, would be manifestly absurd.

Senior counsel submitted that the relevant Commonwealth legislation mandates that a construction of a statute which promotes the purpose or object of an Act is to be preferred to a construction which does not. In this regard, senior counsel cited s. 15AA of the Acts Interpretation Act 1901 (Cth) (“the Interpretation Act”) which is in the following terms:

In reliance upon that provision, senior counsel submitted that the underlying purpose of the Act was to empower the CDPP to prosecute offences, and that a disjunctive construction of s. 6(1)(m) was consistent with, and promoted, that purpose.

It was further submitted that a disjunctive construction produced a fairer and more convenient operation of the provision, and conformed with the relevant legislative intention. It was submitted that if the Parliament had intended the words in s. 6(1)(m) to be construed conjunctively, other language would have been used so as to make that intention clear, such as “to institute and then carry on” or “to carry on, in accordance with the terms of the appointment, prosecutions for State offences instituted by the Director”. It was submitted that the absence of such language supported the CDPP’s position.

Senior counsel further submitted that there was a nexus between the State offences charged against the plaintiff and the Commonwealth offence. It was submitted that such a nexus remained, notwithstanding the plea of guilty to the Commonwealth offence and the plaintiff’s committal for sentence on that charge, and that it supported the power of the CDPP to prosecute the State offences.

Finally, senior counsel submitted that the decision in Dexter directly supported the CDPP’s position. It was submitted, in particular, that the reasons of McMurdo P were part of the ratio decidendi, and that they supported the conclusion that s. 6(1)(m) of the Act was to be read disjunctively. It was submitted that I should follow the decision in Dexter unless I could come to a conclusion that it was plainly wrong. It was submitted that such a conclusion was not reasonably open in the circumstances.

In “Statutory Interpretation in Australia” (D C Pearce and R S Geddes) the authors, in reference to s. 15AA of the Interpretation Act, state the following (at [2.11]):

The long title to the Act states that it is an Act “to establish an Office of the Director of Public Prosecutions and for related purposes”. In the present case, counsel for the plaintiff accepted that part of the underlying purpose of the Act was to provide the Director with “statutory powers”. The statutory powers to which counsel was referring must necessarily be statutory powers related to the prosecution of offences. Similarly, the reference to “related purposes” in the long title to the Act must be a reference to purposes related to the prosecution of offences.

The position taken by counsel for the plaintiff as to the purpose of the Act is generally consistent with the terms of the Explanatory Memorandum to the Director of Public Prosecutions Bill (1983) which stated (inter alia):

It is apparent from the terms of Clause 6 that it was the intention of the Parliament that the Director conduct prosecutions for State offences where (as here) he holds the necessary appointment to do so. The stated intention says nothing about the institution of such prosecutions. Moreover, there is no relevant difference between the word “conduct” (being the term used in the Explanatory Memorandum) and the term “carry on” (being the term used in s. 6(1)(m) of the Act). In R v Dainer and ors; Ex parte Pullen (1988) 78 ACTR 25 Kelly J, in reference to the decision of the English Court of Appeal in Raymond v Attorney-General [1982] QB 839, concluded (at 31) that the term “carry on”, where it was used in the Act in relation to proceedings or prosecutions, was intended to relate to the general conduct of such proceedings (see also Dexter at [29] per McMurdo P where her Honour cited the dictionary definition of such terms). All of these considerations tend against the conjunctive construction of s. 6(1)(m) which has been advanced by the plaintiff.

Further, as counsel for the CDPP pointed out, the acceptance of a conjunctive construction of s. 6(1)(m) would mean, in the context of the present case, that once the plea of guilty to the Commonwealth offence had been entered by the plaintiff, there would suddenly have been no prosecutor for the State offences, in circumstances where the two were factually related. I accept the submission of senior counsel for the CDPP that this would be an absurd result and one that the Parliament could not possibly have intended. It would also be a result which was at odds with what counsel for the plaintiff agreed was part of the underlying purpose of the Act (at [25] above).

Moreover, as counsel for the plaintiff conceded, the construction of s. 6(1)(m) which he advanced is at odds with the decision in Dexter (supra). In Dexter the appellant had been convicted in the Queensland District Court in respect of a series of offences contrary to the Criminal Code 1899 (Qld) (“the Code”). At the time, the CDPP and the Queensland Director of Public Prosecutions (“QDPP”) had in place an agreement to allow either organisation to prosecute Commonwealth and State offences on a single indictment. The agreement required a case by case decision, as well as mutual consent. It included general guidelines for deciding which organisation should have conduct of proceedings. The CDPP had asked the QDPP to consent to the presentation of an ex-officio indictment against the appellant containing 17 counts contrary to the Code. In seeking that consent, a draft indictment was provided. The QDPP subsequently gave permission to the CDPP to present that indictment. This permission amounted, in effect, to the QDPP giving its consent:

Following his conviction, the appellant appealed. He argued that the CDPP’s involvement in the institution and presentation of the indictment, which charged offences only against a law of Queensland, rendered the indictment a nullity, and that the convictions based upon it were required to be set aside. It was argued that the CDPP had no lawful authority to indict and prosecute the appellant, be it in right of the Commonwealth or in right of the State.

The appeal was dismissed. In the course of her judgment McMurdo P said the following (commencing at [29]):

Jerrard JA (at [89]) relevantly agreed with McMurdo P. In the present case, there is no issue that the CDPP holds a relevant instrument of appointment. Both parties accepted that the passages of the judgment of McMurdo P to which I have referred formed part of the ratio decidendi.

As a judge at first instance I should not depart from a decision of an intermediate appellate Court in another jurisdiction in respect of the interpretation of Commonwealth legislation or uniform national legislation, unless I am convinced that the interpretation is plainly wrong: Farah Constructions Pty Limited and ors v Say-Dee Pty Limited [2007] HCA 22; (2007) 230 CLR 89 at [135]; 152 (per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) citing Australian Securities Commission v Marlborough Gold Mines Limited [1993] HCA 15; (1993) 177 CLR 485 at 492 (per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ). I am not convinced that the interpretation ascribed to s. 6(1)(m) in Dexter is plainly wrong. On the contrary, I respectfully agree with the reasons of McMurdo P. Her Honour’s interpretation of s. 6(1)(m) is consistent with the view I have otherwise reached.

I am unable to accept the submission of counsel for the plaintiff that it is open to me to decline to follow the decision in Dexter because the provisions of s. 6(1)(m) were not fully considered by the Court of Appeal. Such a submission is at odds with the terms of the judgment of McMurdo P. Further, it is of some significance that the decision of the Court of Appeal was the subject of an application for special leave to appeal to the High Court: Dexter v R [2004] HCA Trans 219. The provisions of s. 6(1)(m) were specifically referred to by senior counsel for the appellant at the hearing of the application for special leave (commencing at T6 L217). Without calling upon the then Commonwealth Director, Gleeson CJ concluded (at T7 L262) that there were insufficient prospects of success of an appeal to warrant a grant of special leave. The application for special leave was then dismissed. In my view, the provisions of s. 6(1)(m) were obviously the subject of judicial consideration in Dexter, and the conclusion which was reached was at odds with the submissions now advanced on behalf of the plaintiff.

I make the following orders: