Dacich v Director of Public Prosecutions (NSW); Kennedy v Director of Public Prosecutions (NSW) (No 2)

BASTEN JA: The applicant, Clare Dacich (also known as Kennedy), is currently serving a sentence of imprisonment imposed on her in the District Court on 9 September 2019. There was no appeal available from that sentence, but she commenced proceedings in the supervisory jurisdiction of this Court, which were dismissed on 19 November 2020. For the bulk of the time pending determination of the proceedings in the supervisory jurisdiction, the applicant was at large on bail. The entitlement to bail, and the stay of her sentence, terminated with the dismissal of those proceedings.

Between 19 November and 30 November 2020 the applicant filed a number of documents in this Court seeking to review the status of her current custody. When the matters were listed before this Court on 30 November 2020, she sought an adjournment to provide further documentary material. Directions were made on 30 November 2020 to allow that to occur.1 In that judgment, seven proposed orders were identified. [1]

One of the documents which had been supplied prior to the hearing on 30 November was a summons seeking judicial review, which was e-filed on 18 November 2020 and given the identifier as matter 2020/328871. The Director of Public Prosecutions filed a notice of motion seeking to have the matter dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

On 3 December 2020, the applicant e-filed a notice of motion seeking, in substance, to vary the order which prevented a statutory stay consequent upon the filing of the amended summons on 18 November 2020 from having effect, and seeking an order in the nature of mandamus directing the District Court to “reopen the sentence proceedings.”

Secondly, the applicant supplied a document headed “Amended Summons Commencing an Appeal (Part 50)” which was, in substance, an application for judicial review under s 69 of the Supreme Court Act 1970 (NSW). It identified nine decisions which were sought to be reviewed. It was an amalgam of documents, including page 3 from the original summons signed on 26 November 2020 but including a challenge to a decision made on 29 November 2020.

Thirdly, the applicant filed a document purporting to be an application for special leave to appeal to the High Court. It was signed on 28 November 2020 but there is no evidence that it has been filed. Counsel for the Director stated in a written submission that the Director had received no communication from the High Court indicating that an application for special leave had been filed, although such notification ordinarily occurs when a document has been filed identifying the Director as a party.

As the application identified no matter substantially different from those raised by the applicant to date in this Court, including by her amended summons, her application for a stay pending determination of the High Court special leave application will turn on the consideration of the grounds in the amended summons and the Director’s application to have the amended summons dismissed summarily.

For the reasons given below there is no substance in the applicant’s present complaints. Accordingly the exceptional circumstances required to warrant a stay of her sentence pending determination of the proceeding in the High Court have not been made out. That application must be refused.

It is convenient to deal with the remaining issues by considering the Director’s application for summary dismissal of the summons. Those matters encompass the possible bases for the relief sought in the notice of motion.

The orders sought in the amended summons were as follows:

The “second defendant” was the District Court. With respect to order 1, the frontsheet to the summons identified various decisions and parties, but no appeal was available with respect to most of the decisions, based on the matters identified in the grounds, to which reference will be made below. As to order 2, again it will be necessary to identify a possible ground requiring the District Court to hear and determine some matter afresh, other than the sentence proceeding which was the subject of the first judicial review proceeding in this Court which was dismissed.

As to order 3, as the applicant has been informed on more than one occasion, an application pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (“Appeal and Review Act”) is not a judicial proceeding and is dealt with administratively.

It is convenient to deal with the grounds separately as listed in the amended summons and the subject of submissions by the Director in support of his summary dismissal application.

Ground 1 read as follows:

There is no evidence before the Court of any application for a stated case having been made to Judge Colefax. However, given the suggestion that it was determined a year after the sentencing judgment, and was not raised in the earlier application for judicial review, there is no reason to suppose that a timely application was made under s 5B of the Criminal Appeal Act 1912 (NSW). The need for such an application was identified in Dacich/Kennedy No 1 at [18].

Ground 2 alleged lack of jurisdiction on the part of the Local Court to hear and determine “the original matter”, the applicant being unaware of her rights. This matter was dealt with in Dacich/Kennedy No 1 at [24]. No such challenge is available following the appeal to the District Court.

Ground 3 alleged a refusal on the part of the District Court to “deal with an application for leave out of time to appeal against conviction”. This matter was dealt with in Dacich v Director of Public Prosecutions (No 2), [2] delivered on 19 November 2020 at [39]-[49]. An attempt to reagitate that claim is an abuse of process. [3]

Ground 4 read as follows:

The Director inferred that a further criminal prosecution has been commenced against the applicant, the details of which are not before this Court. Even if that is so, it is impossible to identify (i) any specific decision, (ii) any particular court before which charges are pending, (iii) any prosecutorial decision which could be subject to judicial review and (iv) any basis upon which this Court would have jurisdiction to review such matters. The ground is misconceived.

Ground 5 related to something said during a “detention application” as to the operation of s 69C of the Supreme Court Act. The ground may be taken to refer to a detention application heard by Ierace J in December 2019, which was rejected. The effect of the impugned statement appears to have been that no stay was ordered upon a grant of bail, as a result of which the sentence continued to run.

A statement made by one party in the course of submissions as to the legal effect of a particular order provides no basis for judicial review of a decision favourable to the applicant. Nor does it provide a basis for concluding that the stay did not operate upon the grant of bail. The correct legal position was explained in Dacich/Kennedy No 1 at [26]-[30].

Ground 6 alleged that on 28 August 2020 I made an order dismissing an application pursuant to s 78 of the Appeal and Review Act “due to judicial review proceedings.” That assertion was factually inaccurate. The proceedings were commenced in the Common Law Division. My judgment [4] explained that an application for an inquiry under s 78 was not a judicial proceeding and could not be dealt with in a Division of the Court. The administrative process identified in Pt 7 of the Appeal and Review Act was set out. I suggested that the summons should be treated as an application under s 78 and could be referred to a judge appointed by the Chief Justice, if that course were sought to be pursued.

Ground 7 appeared to refer to a related matter to that raised by ground 4. It stated:

As the Director observed, the ground appears to identify proceedings commenced by the applicant which have not yet been determined. It possibly relates to evidence obtained as the basis for new charges against the applicant, referred to in ground 4. There is no judicially reviewable decision identified, and, indeed, none appears to have been made.

Ground 8 was in the following terms:

There is no s 69C(A): it may be inferred that the applicant intended to refer to s 69C(2)(a) or s 69A(3), or both. This ground appears to be related to ground 5, in so far as it suggests (though only by inference) that the sentence was not stayed upon the applicant being granted bail. This matter was disposed of in earlier proceedings, as explained at [21] above.

Ground 9 implied that, on 29 November (2020?) the applicant filed an application under s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”) seeking to reopen the District Court proceedings “due to an error of law.” The ground implied that the District Court refused to list the application, thereby denying the applicant procedural fairness.

If in fact the application was made on 29 November 2020 (which was, as the Director observed, the Sunday before the present matter was first listed before this Court), then it was an abuse of process. The application would have been an attempt to avoid the consequence of this Court rejecting the judicial review application. If, on the other hand, the application was made in November 2019, then it was a decision which should have been the subject of review (if at all) in the first judicial review application. In any event, the ground is without substance. The rejection by this Court of the supposed errors made by the District Court in sentencing the applicant left no room for the proposition that the District Court “imposed a penalty that is contrary to law” or “failed to impose a penalty that is required to be imposed by law” within the meaning of s 43(1) of the Sentencing Procedure Act. On any view the ground, whatever its provenance, is an abuse of process.

Rule 13.4 of the UCPR provides:

The applicant’s amended summons purported to be filed in both matter 2019/302523 and matter 2020/328871. The former was the proceeding that was disposed of by way of judgment delivered on 19 November 2020. In so far as the amended summons sought to identify issues which had been raised, but not properly addressed, in those proceedings, it may be treated as an application to reopen the judgment of 19 November 2020. Otherwise, the summons purported to be a summons commencing new proceedings namely matter 2020/328871.

The grounds identified in the summons all fell within the terms of r 13.4(1)(a)-(c), whether filed in the former proceeding or as commencing the new proceeding.

Pursuant to s 46(1)(b), a judge of the Court has power “to dismiss an appeal or other proceedings for want of prosecution or for other cause specified in the rules”. A summons seeking judicial review is a form of “other proceeding”. The power to dismiss a proceeding summarily arises under the rules, namely UCPR, r 13.4. The power of a single judge to dispose of proceedings on that basis follows from the decision in Macatangay v State of New South Wales (No 2). [5] In accordance with the application of the Director, the amended summons discloses no reasonable cause of action and, in that sense, is frivolous and vexatious. To the extent that it seeks to relitigate issues already determined, without providing any sound basis for reopening the earlier determination, it constitutes an abuse of process.

Neither in the notice of motion dated 30 November 2020, nor in the Director’s written submissions, did the Director seek costs. Accordingly, no order for costs should be made.

The Court makes the following orders: