Applicant v Respondents

CRIMINAL LAW ― Private prosecution ― DPP taking over the prosecution ― Charges withdrawn ― Whether private prosecutor remains a party to a criminal proceeding for appeal purposes ― Criminal Procedure Act 2009 (Vic) s 272 ― Director of Public Prosecutions Act 1983 (Cth) ss 9(5), 14.

1 This is an appeal from an order of Mukhtar AsJ made on 8 July 2011[1] refusing leave to appeal from orders made by the Magistrates' Court at Melbourne on 22 February 2011. On that day, the Magistrates' Court struck out a multitude of charges filed by Mr Tatana against 17 persons under the Criminal Code Act 1995.

2 The charges ranged from perverting the judicial power of the Commonwealth, producing false and misleading documents to a Commonwealth entity, making false and misleading statements and documents to a Commonwealth entity, obtaining by deception property belonging to a Commonwealth entity, conspiracy to defraud a Commonwealth entity, obstructing a Commonwealth public official and obtaining a financial advantage by deception from a Commonwealth entity.

3 The factual background was summarised by Mukhtar AsJ in his reasons for judgment[2] and I need not repeat it.

4 The statutory provisions that are relevant to this appeal are ss 9 and 14 of the Director of Public Prosecutions Act 1983 (Cth) ('DPP Act'), and s 272 of the Criminal Procedure Act 2009 (Vic) ('CP Act').

5 Section 9(5) of the DPP Act permits the Director of Public Prosecutions ('DPP') to take over a criminal proceeding and provides that, where the DPP does so, he or she may decline to carry it on further. Section 14(2) provides that, as from the time that the DPP notifies the registrar of the court that he or she has taken over a prosecution, the DPP shall 'be deemed for all purposes to be the prosecutor, informant or complainant, as the case requires, in that prosecution'.

272 Appeal to Supreme Court on a question of law

(1) A party to a criminal proceeding (other than a committal proceeding) in the Magistrates' Court may appeal to the Supreme Court on a question of law, from a final order of the Magistrates' Court in that proceeding.

...

(3) An appeal under subsection (1) is commenced by filing a notice of appeal in accordance with the rules of the Supreme Court within 28 days after the day on which the order complained of was made.

...

(7) An appeal commenced after the end of the period referred to in subsection (3) is deemed to be an application for leave to appeal under subsection (1).

(8) The Supreme Court may grant leave under subsection (7) and the appellant may proceed with the appeal if the Supreme Court -

(a) is of the opinion that the failure to commence the appeal within the period referred to in subsection (3) was due to exceptional circumstances; and

(b) is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.

7 The first issue is whether Mr Tatana has demonstrated that his failure to file a notice of appeal within 28 days after the day on which the orders were made by the Magistrates' Court was 'due to exceptional circumstances' for the purposes of s 272(8)(a) of the CP Act.

8 The orders of the Magistrates' Court were made on 22 February 2011. Mr Tatana's notice of appeal is date-stamped 23 March 2011 and, on the face of it, was filed one day late.

9 Mr Tatana has not filed any affidavit explaining the circumstances in which the notice of appeal came to be date-stamped 23 March 2011. Before me, he stated from the Bar table that he attended the Prothonotary's office on 21 March 2011 to file the notice of appeal but the staff of the Prothonotary's office refused to accept it on that date. In the light of my conclusions on the second and third issues, it is not necessary for me to decide whether the notice of appeal was filed late and, if so, whether this was due to exceptional circumstances.

10 The second issue is whether Mr Tatana is a 'party' to the criminal proceeding for the purposes of 272(1) of the CP Act.

11 In my opinion, Mr Tatana is not a party because, by virtue of s 14(2) of the DPP Act, the DPP has displaced him as the prosecutor and informant.[3] Accordingly, Mr Tatana has no standing to bring an appeal to this Court under s 272 of the CP Act.

12 The third issue is whether the orders that are the subject of the appeal are 'final' for the purposes of s 272(1) of the CP Act.

13 In Director of Public Prosecutions (Vic) v Sabransky,[4] Kellam J held that an order striking out of charges brought in the Magistrates' Court was not a final order.[5] This decision was affirmed in Director of Public Prosecutions (Vic) v Moore.[6] It follows that the orders of the Magistrates' Court in the present case were not final orders and that the appeal is incompetent.

14 The fourth issue is whether Mr Tatana's notice of appeal raises any question of law that is relevant to the determination of the appeal. In the light of my conclusions in relation to the second and third issues, I have not considered this issue and express no view on it.

15 For the above reasons, the appeal will be dismissed.

[1] The order is incorrectly dated 7 July 2011.

[2] Tatana v DPP (Cth) [2011] VSC 316 (11 July 2011).

[3] Price v Ferris (1994) 34 NSWLR 704.

[4] [2002] VSC 143 (30 April 2002).

[5] [2002] VSC 143 (30 April 2002) [37]-[38].

[6] [2003] VSCA 90; (2003) 6 VR 430, 438 [21]. See also R v McGowan; Ex parte Macko [1984] VicRp 78; [1984] VR 1000, 1002; DPP (Vic) v Hogg [2006] VSC 257 (11 July 2006) [42].