Belkheir v Director of Public Prosecutions

The Background to the Criminal Proceedings

1. It is not necessary for present purposes to give more than the broadest detail of the criminal allegation against the plaintiff. In late 2020, the then 18 year old complainant was in contact with the plaintiff via a social media site and made an arrangement to meet at the plaintiff's apartment. He arrived at the apartment building at about 9:30pm on 6 November 2020 and was met by the plaintiff some little time later at the building entrance. In a lift ascending to the plaintiff's apartment, some mutual consensual kissing and touching occurred. Once inside the apartment, the plaintiff is alleged to have forcefully taken hold of the complainant's genital area, before removing the complainant's clothing and his own. Forcible anal intercourse followed. The plaintiff is alleged to have told the complainant that he would "rape" him. The complainant was too shocked and frightened to say or do anything. Following an act of intercourse, the plaintiff is alleged to have struck the complainant repeatedly about the face, and refused to allow him to leave for a period.
2. The complainant spoke to a friend that same night about what had happened, and complained to others in February and March 2021. He made a complaint to police in March 2021. The plaintiff was arrested on 24 February 2022. He participated in an interview with investigating police, indicating that, although he had no memory of an encounter with the complainant, what the complainant described was generally in accordance with the sexual encounters in which he engaged. The plaintiff was asked by investigating police about the issue of consent: "Q107 O.K. Do you ever remember clarifying with [the complainant] that, prior to the intercourse that he was consenting to having sex? A Yes, he was, because that's what, I'm sure he was because that's what we use Grindr for. At 9.30 at night, why would he come to my place?"
3. It appears that the issue at trial is likely to be consent, and knowledge of or recklessness to the absence of consent.

The Summons before the Court

1. As the length of time between the complaint to police and the plaintiff's arrest would suggest, there has been delay in the police investigation of the allegation against the plaintiff, and it is that delay which gave rise to the action brought by the plaintiff in this Court. The plaintiff became frustrated at the repeated adjournments of the matter before the Local Court and filed a Summons seeking to challenge the validity of the orders of that court. He contends that the committal proceedings failed to comply with the statutory scheme that governs such matters in the Local Court, the Criminal Procedure Act 1986 (NSW) ("the CP Act"), and, in addition to the orders referred to above, he seeks declaratory relief as follows: "Declaratory Orders 2 A declaration that the Horan order is ultra vires and therefore void for want of the necessary 'jurisdictional fact' including non-compliance with the statutorily mandated pre-conditions introduced in April 2018 by the Justice Legislation Amendment (Committals and Guilty Pleas) Bill 2017 (NSW) and in particular by the insertion of section 67(2)(a) and (b) into the Criminal Procedure Act 1986 (NSW) (the CP Act). [Note: The April 2018 Reforms to Committal Proceedings are also known as the Early Appropriate Guilty Plea Scheme, ("the Scheme"). See Local Court Practice Note Comm 2 ("the Practice Note"). 3 A declaration that the McIntyre order is ultra vires and void because it assumed the validity of the Horan order, which was and remains invalid and, the Magistrate making the McIntyre order failed to make her own determination on the relevant matters, facts, and circumstances. 4 Further and/or in the alternative, an order quashing or setting aside: (a) the 'Horan order'; and (b) the 'McIntyre order'. 5 A declaration that the filing of the charge certificate by the first defendant in the Local Court proceedings on 15 September 2022 (the charge certificate) was contrary to law, and of no legal effect and constituted an abuse of the Local Court processes."
2. I have again included orders not pressed by the Third FAS, since these orders or something similar to them, together with a number of further orders concerning the conduct of the prosecution, would likely have been pursued if the plaintiff had been allowed an adjournment on 4 October 2023, and granted leave to again amend his claim.

An Integrated History of the Committal Proceedings in the Local Court and those in this Court

1. For the chronology that follows I have drawn upon the evidence filed by both the plaintiff and the first defendant, [1] including as it does the record of the Local Court.
2. As indicated, the plaintiff was arrested on 24 February 2022. He was charged on that day with one count of aggravated sexual assault, contrary to s 61J of the Crimes Act, and one count of sexual intercourse without consent contrary to s 61I and refused bail by an authorised officer. As part of the investigation, the plaintiff's mobile telephone was seized as potential evidence.
3. The plaintiff appeared before the Local Court at the Downing Centre in Sydney from custody the following day, 25 February 2022. This was the day on which the Court Attendance Notices setting out the two charges against the plaintiff were formally filed with the Registry of the Local Court. On that day Magistrate Kennedy granted the plaintiff conditional bail and adjourned the proceedings to 21 April 2022, making orders for the service of the brief of evidence by that date.
4. On 21 April 2022, the plaintiff appeared before Magistrate Price. The brief of evidence had not been served in compliance with the orders made on 25 February 2022, and the matter was further adjourned, with the time for service of the brief extended by order until 9 May 2022. Bail was continued. The same situation prevailed on 9 May 2022, and Deputy Chief Magistrate Tsavdaridis adjourned the matter for "Brief Status (Committal)" on 7 July 2022. Bail was continued, and the plaintiff was excused if legally represented.
5. On 5 July 2022, the police officer in charge of the criminal investigation, Senior Constable ("Sen. Con.") Mitchell Fox completed a certificate pursuant to s 15A of the Director of Public Prosecutions Act 1986 (NSW) and provided it to the DPP with such of the brief of evidence as was available. The certificate contained three schedules, the first and second of which are of no relevance. Schedule 3 listed in a generic way material not the subject of any claim for privilege or immunity, and not protected by statute which was, nevertheless, not attached to the Disclosure Certificate; in other words, evidence that was expected to be obtained as part of the police investigation, but which was not yet available to serve.
6. The partial brief of evidence attached to the Disclosure Certificate gave further, more specific detail of outstanding material. It included statements from named police officers, including a statement of Constable Julian Scott who was noted as "Cellebrite", and the "Cellebrite" and call charge records from both the plaintiff's and complainant's mobile telephones. What was served on the DPP, setting aside documents of an administrative nature, were two statements from the complainant, one of which attached a sketch plan of the plaintiff's apartment; a statement of the friend to whom the complainant spoke on 6 November 2020; statements from two other friends of the complainant, and of his employer to whom he spoke in early 2021 about the alleged sexual assault; a performance review for the complainant that described the deterioration in his work performance from early November 2020; a statement from Sen. Con. Fox as the arresting and interviewing officer; and the transcript of the electronically recorded interview between the plaintiff and police on 24 February 2022.
7. On the following day, 6 July 2022, the brief as outlined above was served upon the plaintiff's then solicitor. The solicitor, Mr Byrnes, was also given an electronic storage device, a "USB", which contained copies of digital recordings of the arrest of the plaintiff (from a police body worn camera), and of the interview in which he had participated on 24 February 2022.
8. The criminal prosecution was mentioned before the Local Court on 7 July 2022. A further adjournment was sought by the prosecution (represented by a police prosecutor) and the matter was stood over to 4 August 2022 for "Brief Service (Committal)", with the plaintiff excused if legally represented. It is the orders that were made by the Local Court on 4 August 2022 which are the subject of the first of the complaints the plaintiff makes to this Court.
9. On 4 August 2022 the matter was mentioned before Magistrate Horan. The plaintiff was represented by Mr Haddad, an employed solicitor of Mr Byrnes. It was Mr Haddad who mentioned the matter, as follows: "Our office has been recently instructed in these proceedings as of 2 August 2022. We've only been provided with part of the brief and not the entirety of it. It's my understanding that we're still waiting on some mobile phone evidence that has been with the police since February 2022. That's what my client has instructed. Essentially that can be served onto our office, and I have provided my colleague with the relevant details there. I believe there was some correspondence exchanged recently between the DPP and my client's former solicitors as to agreeing to a six-week adjournment for the purpose of phone evidence and charge certification. We have no issue with that."
10. The police prosecutor who appeared that day confirmed to Magistrate Horan that an extended service order was sought and advised her Honour that a further 6 weeks was required, with the matter expected to be ready for charge certification at that time. The transcript records the following: "HER HONOUR: The brief is compliant. Is that-no. The extended brief service order is to 15 September; is that right? There's more brief material? HADDAD: That's correct. I believe there's some phone evidence that needs to be provided. PROSECUTOR: Your Honour, my instructions from the DPP is that it is ready for charge certification. HADDAD: I apologise, your Honour. HER HONOUR: If it is ready for charge certification, if the brief is compliant, then the usual way is for this to be adjourned for six weeks. HADDAD: Yes, perfect. That's just so I can tell my client. HER HONOUR: I understand your client's keen, but that's the timetable. HADDAD: Yes, it is what it is. HER HONOUR: So I will not make the extended brief service order but I will bring it back 15 September. Sergeant, do you have an application to make? PROSECUTOR: Yes, if this can stand as well. HER HONOUR: It started on 25 February. PROSECUTOR: Yes, I can see that. HER HONOUR: 15 September is going to take you outside, so you just need to make an application under s 67. It doesn't have to be long. You just need to place some short reasons on the record. PROSECUTOR: If I can just have some time to look at this, you Honour. HER HONOUR: All right. 67 of the Criminal Procedure Act. Just stand it down so that Sergeant can just tidy that formality up, okay? MATTER STOOD IN LIST HADDAD: I believe we have an agreement. PROSECUTOR: Yes, your Honour. Making a 67 application. I understand that my friend consents to the adjournment. I ask the Court to take into account the interests of justice and the complexity of the matter. It's a strictly indictable matter. There are Cellebrite materials that require further time for analysis according to the informant. His email to me indicates that he's experiencing technical issues with the program loading and will require to conduct a manual review. HER HONOUR: Thank you. That's with the consent of the accused person? HADDAD: Yes. HER HONOUR: This is an application made under s 67 of the Criminal Procedure Act to extend the time to file the charge certificate beyond the six-month first return date. I note that the order is sought with the consent of the accused person and I make the order under s 67(3)(a) with that consent. The time is extended to 15 September. The matter returns to Court on 15 September. Bail to continue. HADDAD: Sorry, your Honour, just one other issue. We request that the client be excused if legally represented on the next occasion just because he works full-time. HER HONOUR: Defendant excused if legally represented."
11. The Local Court Bench Sheets entry for 4 August 2022 record the orders of the court thus: "Adjourned date: 15/9/22 s 67(3)(a) [Criminal Procedure Act] extend time to file charge cert[ificate] to 15/9 w[ith] consent"
12. By his affidavit of 27 November 2022, the plaintiff disputes that he consented to the adjournment and extension of time in which to file the charge certificate. He asserts that he was present in court (despite having been excused) and cried out "No!!" from the body of the court when the Magistrate was advised of his consent. As can be seen from the extract of the transcript above, nothing of that nature was recorded.
13. On 9 August 2022 the plaintiff, who had by then had a serious disagreement with Mr Byrne's firm about the adjournment that had been agreed to on 4 August 2022, and begun acting for himself, emailed the Registrar of the Local Court at the Downing Centre asking that his case be re-listed prior to 15 September 2022. In the email the plaintiff asserted that he had told his solicitor that he did not consent to a further adjournment, but that his solicitor had ignored his instructions. He annexed screen shots from his mobile telephone of an undated [and clearly incomplete] exchange between himself and "Jabbour Lawyer", that commenced with the message, evidently from Mr Haddad, "Noted". The plaintiff spoke of an "appeal today" and being "totally opposed at the police taking 6 weeks". The response to the plaintiff's email from the Downing Centre Local Court's Criminal Registry was sent on 10 August 2022; it was to refuse to re-list the matter.
14. The plaintiff next filed, on 8 August 2022, an "Application to the Local Court", apparently to challenge the refusal of the Registrar to re-list the committal proceedings prior to 15 September 2022. The application purported to be brought pursuant to s 40(1) and s 41(3) of the CP Act and nominated Sen. Con. Fox as the respondent, with Mr Haddad, the plaintiff's former solicitor, given as an "Additional Party". The document was lengthy, with some 8 pages of closely typed text. In it, the plaintiff sought orders listing the matter for directions on 15 August 2022; deleting a bail reporting condition; requiring Sen. Con. Fox to "explain" his "failure to comply with court orders" and failure to serve the complete brief of his investigation; vacating the orders of the Local Court of 4 August 2022; requiring Sen. Con. Fox to serve particular documents on the plaintiff within 7 days; further requiring the officer not to attend the plaintiff's place of employment; and a final multi-part order apparently directed at punishing the plaintiff's former solicitor for perceived transgressions. The list of orders sought was followed by a lengthy statement of the numerous injustices perceived by the plaintiff to have been visited upon him by police, his lawyers, and what he referred to in inverted commas as "the system".
15. The plaintiff's application was listed on 1 September 2022 before Magistrate Horan. The plaintiff appeared unrepresented that day; the DPP was represented by a solicitor, as was Mr Haddad, the plaintiff's former lawyer. The Magistrate explained to the plaintiff that the court did not have the power to make the orders he sought and arranged for a duty solicitor to provide some advice to him. The plaintiff's application was dismissed. The Bench Sheets were endorsed "Orders sought cannot be made - no jurisdiction".
16. The plaintiff filed the first version of his Summons in the Registry of the Supreme Court that same day. The Summons sought the following orders: "1 That the orders made by the Presiding Magistrate (I believe, Magistrate Horan) in proceedings 2022/ 00054762 in the Local Court, Downing Centre on 4 August 2022 be quashed. 2 That, until further, the Director for Public Prosecution be enjoined from filing a Charge Certificate in proceedings 2022/ 00054762. 3 A Declaration that, on 4 August 2022, Sacha Belkheir did not give the requisite consent under s 67 (3) (a) of the Criminal Procedure Act 1986. 4 Order that the Local Court (Magistrate Horan) do its duty according to law and in particular s 67 (3) and (4) of the Criminal Procedure Act 1986. 5 Leave to proceed ex parte on an urgent basis and on evidence contained in Plaintiff's Statutory Declaration sworn on 1 September 2022 copy of which was provided to the Court and Mr Peter Low of DPP yesterday, 31 August 22."
17. The Supreme Court Summons was mentioned before the Registrar on 5 September 2022 and adjourned to the following day. On 6 September 2022, the matter was given an urgent hearing date before the Duty Judge on 9 September 2022. The hearing came before his Honour Justice Chen on that date to deal with an application for a temporary stay. His Honour declined to stay the criminal prosecution and dismissed that part of the plaintiff's claim. Referring to the apparent inutility of the balance of the claim for relief, his Honour observed that the Summons "needed some work" and directed that any amended summons should be filed and served by 30 September 2022: Belkheir v Director of Public Prosecutions (Supreme Court (NSW), 9 September 2022, unrep).
18. Thereafter, the criminal prosecution was again mentioned before the Local Court on the listed date of 15 September 2022. The second of the orders about which the plaintiff complains were made that day. By that date the plaintiff had engaged a third firm of solicitors to act for him, and Mr Flick of counsel appeared. The court was advised as follows by Mr Flick: "If I could mention for the record that the defendant takes issue with the filing of that certificate. The defendant's position is that the orders extending the filing of that certificate were made on 4 August were not valid. However, I've spoken with my friend and there is a way that we can deal with that issue. I just mention it for the record."
19. Magistrate McIntyre, who was presiding on 15 September 2022, was told by Mr Flick that the plaintiff had filed proceedings in the Supreme Court challenging the decision to extend the time in which the certificate could be filed, and a case conference should be scheduled for the committal matter 12 weeks ahead rather than the usual six weeks, to allow those proceedings "to play out". When the Magistrate observed that the Local Court matter should proceed unless and until the Supreme Court said otherwise, she was told by Mr Flick, "I wouldn't put it that highly". Mr Flick raised the plaintiff's assertion that, notwithstanding what the court had been told on 4 August 2022 as to his consent to an extension for the service of the brief pursuant to s 67(3)(a) of the CP Act, he had not in fact consented, and "There's an issue about that".
20. The transcript of 15 September 2022 records the solicitor for the DPP advising the court that the plaintiff had obtained the audio-recording of the mention of the matter on 4 August 2022, and had not been able to hear the refusal of consent to the extension and adjournment that he claimed to have called out. The plaintiff acknowledges that no interjection by him can be heard on the audio-recording made of the proceedings on 4 August 2022.
21. In accordance with the orders of 4 August 2022, and over objection by the plaintiff, who contended that those orders were invalid because he had not consented to the extension, the solicitor appearing for the DPP filed a charge certificate. The certificate, which appears to conform with the requirements of s 66 of the CP Act, certified a charge of sexual assault as proceeding to the District Court. The aggravated sexual assault formerly charged against the plaintiff was not certified for committal but, rather, was withdrawn. It does not appear that the plaintiff takes exception to the withdrawal of the more serious charge.
22. Magistrate McIntyre made orders adjourning the matter for a case conference between the parties on 24 November 2023 and returning it to the Local Court list on 8 December 2022, with the case conference certificate required to be filed on that date. The validity of the order for a case conference is also disputed by the plaintiff, and he asks this Court to set it aside.
23. Although those appearing in the Local Court appeared to believe that the plaintiff's Supreme Court claim would be "sorted out" within a few months that has, regrettably, not proven to be the case. On 24 November 2022, the plaintiff filed an Amended Summons, almost two months after the date by which his Honour Justice Chen had directed that be done. That tardiness required two further mentions before the Registrar (on 10 October 2022 and 24 October 2022), and two further extensions of time in which to file and serve any Amended Summons, to 21 October 2022 and then 25 November 2022. Even with the extensions of time allowed to him, the plaintiff required a further extension of time in which to file and serve his evidence.
24. The Amended Summons sought judicial review of the orders of the Local Court on 4 August 2022 and 15 September 2022, and "the decision and actions" of the DPP in filing the charge certificate on the latter date. The orders sought were orders for damages payable by the DPP and the Commissioner of Police respectively to the plaintiff.
25. The amendments to the Summons occasioned yet more delay as the defendants, there then being four named defendants, [2] required time in which to respond to the Amended Summons. The matter was adjourned until 7 February 2023.
26. With the Supreme Court proceedings outstanding, the criminal prosecution was left languishing in the Local Court. The committal that could have occurred on or soon after 8 December 2022 did not proceed. The matter was instead adjourned to 13 April 2023, for mention only, awaiting resolution of the plaintiff's claim in this Court. The Local Court prosecution was thereafter adjourned to 3 July 2023, and then 19 October 2023. On each occasion the adjournment was necessitated by the plaintiff's claim remaining undetermined before the Supreme Court.
27. In this Court, the matter remained undetermined because of the frequent amendments made to the plaintiff's claim. The Amended Summons was further amended, apparently in response to correspondence to the plaintiff from the DPP pointing out perceived problems with the claim, followed by a Notice of Motion from the DPP seeking dismissal of the summons or strike out orders, filed by the Director on 1 February 2023. The Motion was listed before the Registrar on 7 February 2023, and adjourned on that day for hearing on 2 May 2023.
28. On 2 May 2023, the matter came before Walton J. The plaintiff was represented by senior counsel, Mr Robinson, who sought to file in Court a Further Amended Summons ("FA Summons"). Leave was granted by his Honour. The FA Summons did not readily display the amendments made to the Amended Summons, with senior counsel for the plaintiff explaining to his Honour that: "[…] it was not red lined because there have been changes throughout the document and it was already a dog's breakfast, red lined as it was on the amended version. This version, it has almost every aspect of it has been changed to a slight extent and things have been cut out, of course, from it."
29. Senior counsel described the FA Summons as "unsullied by unnecessary parties and questions of false imprisonment and damages and so on" such that the claim was "a substantive ultra viries case". Mr Robinson conceded that the FA Summons had not been served on the defendants until late the previous night, and acknowledged that none were in a position to respond because of that lateness. The matter was adjourned to 9 May 2023 before Walton J. Although it is not entirely clear in the evidence, or from the Court's file, what if anything occurred on 9 May 2023, it seems likely that the date was vacated at some stage, presumably as the parties had had discussions rendering any hearing unnecessary.
30. On 11 May 2023, his Honour made orders in Chambers granting the plaintiff leave to file a Second FAS. In the document filed on 14 May 2023, other changes to address the matters raised in the Director's Motion filed on 1 February 2023 were made. The matter was listed before the Registrar for further directions on 15 May 2023, when it was listed for hearing on 4 October 2023. The Motion of 1 February 2023 was superseded by the amendments made to the summons, and was not pressed by the Director.
31. The Director filed her response to the Second FAS on 5 June 2023, and evidence on 28 July 2023. The plaintiff's submissions were due to be filed by 7 September 2023; they were filed on 18 September 2023. Accompanying the submissions was a further version of the summons, the Third FAS. The Director filed submissions directed to that claim on 27 September 2023.
32. In this new version, filed by the parties with the joint Court Book as the claim to be determined on the hearing date, Mr Robinson SC further refined the original claim. Submissions relating to the Third FAS responding to the Director's submissions were filed by the plaintiff on 2 October 2023.
33. From an affidavit of Rodney Kent, filed on 4 October 2023, it seems that the plaintiff fell out with senior counsel over the Third FAS, and Mr Robinson and his junior ceased to act. Mr Kent sought an adjournment of the hearing to enable the plaintiff to file a fourth FAS, that is, a sixth version of his claim. The adjournment being refused, Mr Kent withdrew, and the plaintiff argued his own case.
34. The parties having previously agreed that the hearing would determine the Third FAS, included it as the relevant claim in the joint Court Book, and filed written submissions relevant to it; it was the orders there sought that the Court considered. I propose, however, to also address the substantive additional order raised by the Second FAS, for finality if nothing else.

The Claim to this Court

1. The plaintiff read his affidavit of 29 November 2022 and produced Exhibit ("Ex") SB in support of his claim. He argued that the decisions of the Local Court of 4 August 2022 and 15 September 2022 were invalid, as having been made beyond power, and sought judicial review of them, together with declaratory relief.

The Statutory Framework

1. To understand and determine the plaintiff's claim it is necessary to consider Part 2 of Chapter 3 of the CP Act, which regulates the conduct of committal proceedings. Committal proceedings commence on the date upon which a Court Attendance Notice is filed in the Registry of the Local Court: s 53. An outline of the general procedure applicable to committal proceedings thereafter is found in s 55 of the Act.
2. With some exceptions noted in s 64, the prosecutor is required to disclose evidence "relating to each offence". Division 3 of Part 2 of Chapter 3 deals with the disclosure of evidence. Section 62(1) provides for the nature of the evidence to be disclosed: "62 Matters to be disclosed in brief of evidence (1) The brief of evidence must contain the following - (a) copies of all material obtained by the prosecution that forms the basis of the prosecution's case, (b) copies of any other material obtained by the prosecution that is reasonably capable of being relevant to the case for the accused person, (c) copies of any other material obtained by the prosecution that would affect the strength of the prosecution's case."
3. The obligation of disclosure is ongoing, with s 63 contemplating progressive service of evidence as it comes into the possession of the prosecution.
4. Division 4 of Part 2 deals with charge certificates. Section 67, the provision under which the impugned orders of 4 August 2022 were made, relates to the filing of a charge certificate. It is in these terms: "67 Charge certificate must be filed (1) A charge certificate must be filed by the prosecutor in the registry of the Local Court, and served or caused to be served on the accused person, not later than the day set by order by the Magistrate. (2) The day must - (a) be set after the service of the brief of evidence in the committal proceedings, and (b) be not later than 6 months after the first return date for a court attendance notice in the committal proceedings. Note - The first court appearance required by the court attendance notice may be before a registrar exercising certain functions of the court pursuant to rules of the court, or the functions of an authorised justice under the Bail Act 2013. (3) However, the Magistrate may set a day for the filing of a charge certificate that is later than 6 months after the first return date for a court attendance notice in the committal proceedings - (a) with the consent of the accused person, or (b) if it is in the interests of justice to do so. (4) In determining whether or not it is in the interests of justice to set a later day, the Magistrate is to consider the complexity of the matters the subject of the proceedings. This subsection does not limit the matters that may be considered by the Magistrate. (5) If the prosecutor determines that an offence other than an offence specified in the charge certificate filed by the prosecutor is to be the subject of the proceedings against the accused person, the prosecutor must file in the registry of the Local Court, and serve or cause to be served on the accused person, an amended charge certificate before the accused person is committed for trial or sentence."
5. As can be seen by s 67(5), a charge certificate as filed is not necessarily final; it can be replaced with an amended charge certificate.
6. Failure to file a charge certificate within the specified timeframes has consequences, provided (relevantly) by s 68. "68 Failure to file charge certificate (1) This section applies if the prosecutor fails to file and serve, or cause to be served, a charge certificate before - (a) the day that is 6 months after the first return date for a court attendance notice in the committal proceedings, or (b) any later day set by the Magistrate for doing those things. (2) The Magistrate must - (a) discharge the accused person as to any offence the subject of the committal proceedings, or (b) if the Magistrate thinks it appropriate in the circumstances of the case, adjourn the committal proceedings to a specified time and place. (3) In determining what action to take, the Magistrate is to consider the interests of justice."
7. The following division, Division 5, deals with case conferences which, other than in the circumstances given by s 69, follow the filing of the charge certificate. The procedure for case conferences is principally directed to facilitate the shortening of the overall proceedings by a negotiated plea of guilty to an appropriate charge. [3] The process is little more than a step to be completed for those matters where a plea of guilty is an unlikely option. A case conference certificate must be completed and filed, with s 74(1) providing that the "Magistrate is to make an order setting the day on or before which the case conference certificate is to be filed". Unreasonable failure by the prosecutor to file a case conference certificate as directed has the same consequences as failure to file a charge certificate; that is, the Magistrate can, having considered the interests of justice, discharge the accused or adjourn the proceedings: s 76.

The Decision of 4 August 2022

1. On 4 August 2023, Magistrate Horan made the first of the impugned decisions in extending the time in which the charge certificate was to be filed to 15 September 2022. The Court Attendance Notices that commenced the proceedings against the plaintiff had been filed with the Registry of the Local Court on 25 February 2022, the first day on which the plaintiff appeared from custody to answer the charges. Section 67(2) of the CP Act provides that the day upon which the charge certificate is filed must be a day after the brief of evidence has been served, and not more than 6 months after the first return of the matter, the latter date being 25 February 2022.
2. The plaintiff contends that neither s 67(2)(a) or (b) had been complied with by the prosecution. That is, a full brief of evidence had not been served upon him, with, at least, "phone evidence" outstanding; and the period of 6 months expired on 24 August 2022.
3. His first contention is that the failure to comply with the requirement for the service of the brief of evidence deprived the Magistrate of the power to extend the time in which the certificate could be filed, because a charge certificate may be filed only after the full brief had been served. It is submitted that the operation of s 67(2)(a) cannot be varied by the court, with an extension only available in circumstances where the full brief of evidence has been served. Such a construction is said to be consistent with the purpose of the legislation in providing for an exploration of the possible resolution of proceedings by a plea of guilty: Landrey v Director of Public Prosecutions (NSW) [2022] NSWCA 211 at [31].
4. It is submitted that, brief compliance not having been achieved, the Magistrate was not entitled to conclude there had been compliance, and the court could not extend the time for filing of the charge certificate. Thus, it is argued, the Magistrate made an order absent the power to do so, and the order is void for want of jurisdiction.
5. The second basis upon which it is argued the 4 August 2022 order was made ultra viries is that the plaintiff did not consent to the extension of time, and thus the power to extend the time for the filing of the charge certificate was not enlivened by s 67(3)(a), the provision under which the extension was granted by the Magistrate. The plaintiff submits that the statutory precondition of his consent to the extension of time is a jurisdictional fact, satisfaction of which is essential to the exercise of the power provided by s 67(3)(a): "It is a question of statutory construction as to whether an evaluation that must be undertaken in order to determine whether a statutory power arises is entrusted to the repository of the power or whether it is a precondition that must be satisfied before the jurisdiction of the repository is enlivened (Tsvetnenko v United States of America (2019) 269 FCR 225 at [28], citing Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at [39]-[42] and Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 at [6]). In this case, the process of construction of s 67(3)(a) leads to the conclusion that parliament intended that the factual reference can only be satisfied by the actual existence of the fact or facts - that is, that a magistrate's power to extend time for the filing of a charge certificate is enlivened if the accused in fact consents; not if the magistrate forms the opinion that he or she has consented. This is the plain meaning of the text and consistent with the legislative intention to protect the interests of accused persons and place pressure on prosecutors to file a charge certificate promptly."
6. He argues that the decision of the Magistrate to extend the time in which the charge certificate was to be filed was void, because the court did not have the power to extend time in circumstances where he did not consent to that course, as contemplated by s 67(3)(a).
7. For the reasons that follow, I have concluded that neither of these contentions has any merit.
8. As to the first argument advanced by the plaintiff, the construction of s 67 is insupportably narrow and would confine the operation of the provision so as to make it practically unworkable, such that the progress of committal proceedings through the Local Court would be needlessly drawn out and delayed, to the detriment of the administration of justice. The order made by the Magistrate on 4 August 2022 was not for the filing of the charge certificate before the day on which a brief of evidence was served; it was simply an order extending the time in which the certificate was to be filed. The order said nothing about the timeframe for service of a brief, or as to whether a brief had been served in full or not. There is nothing in s 67 that makes the service of a full brief of evidence upon an accused person mandatory before the order for the filing of a charge certificate is made. Section 67 requires only that the day set for filing is a day after the brief is served. That there may be other evidentiary material yet to be served at any given time is clearly contemplated by s 63, which provides for progressive disclosure as material comes into the possession of or is "obtained" by the prosecution.
9. Although she was told that evidence connected with a telephone or telephones was outstanding, the Magistrate was not told that the brief as served did not comply with the CP Act, nor was she asked to extend time for the service of the brief, or adjourn the matter until such time as a full brief was served. Her Honour was entitled to proceed on the basis of what she was told by the parties, particularly in circumstances where each was legally represented. It is not the function of the Local Court under the CP Act to investigate the contents of the brief of evidence, or to determine whether, as a matter of objective fact, a brief has been fully served. That the Local Court does not have those functions reflects a practical reality: it is not possible for a Magistrate to easily or accurately make that determination. The court has no independent investigative function to allow it to determine what evidence there may be that could be relevant to the prosecution case or to the accused person's case. The court has no power, either under the CP Act, or at common law to order the prosecution or the police to obtain particular evidence. As to the limitation on a court's common law powers to direct a particular investigative course, or to require the Crown to place particular evidence before the court, see HO v R [2023] NSWCCA 245, at [88]-[89].
10. The most that the Local Court can do is allow an extension of time for service of a brief and necessarily for the filing of the charge certificate where a party seeks such an extension or, if an accused person takes issue with compliance with brief service orders and the capacity to proceed to the charge certification step, consider what action to take pursuant to s 68(2) of the CP Act.
11. The fact that the Magistrate was told by both parties on 4 August 2022 that there was "phone evidence" or "Cellebrite" outstanding did not of itself raise the prospect that the brief as served did not comply with s 62 of the CP Act. Her Honour was never provided with the document that the plaintiff points to as establishing the inadequacy of the brief, found at page 3 of Annexure E of the affidavit of Mitchell Fox.
12. Section 62 requires service of copies of all material that falls within particular categories, and which has been "obtained by the prosecution", with "the prosecution" extending for the purposes of the legislation to the police. Section 64 provides some qualification to the operation of s 62, including if the material not served is "impossible or impractical to copy". A further qualification exists with respect to "sensitive evidence" as defined and applied in Part 2A of Chapter 6 of the CP Act. The Local Court was told that the police officer in charge of the investigation, Sen. Con. Fox, was experiencing "technical issues with the programme", being a reference to the Cellebrite computer programme by which the plaintiff's mobile telephone, and that of the complainant as appropriate, could be downloaded. Any outstanding Cellebrite download was not necessarily encompassed by s 62 as evidence "obtained by the prosecution", that fell within s 62(a), (b), or (c), or which was not excluded from the requirement of service as sensitive evidence. Even if it was, it may have fallen within the terms of s 64 as being, at least on 4 August 2022, "impossible" to copy because of technical problems.
13. It was not for the Local Court to go behind the advice of the parties and independently ascertain the situation with respect to the brief. The Magistrate was entitled to act upon what she was told: that no orders extending the time for service of the brief were sought, despite "phone evidence" being outstanding, and that an extended time in which to file the charge certificate was sought. That - together with advice as to the plaintiff's consent to an extension of time - was sufficient for her Honour to be satisfied that the orders she subsequently made should be made. Her power to make the orders was not conditional upon the court first determining for itself following objective inquiry that a brief of evidence compliant with the CP Act had been served as at 4 August 2022. An inquiry of that nature was not required to establish a "jurisdictional fact" upon which the court's power was predicated.
14. To argue otherwise is to subvert one of the important purposes of the legislation, which is to ensure the expeditious progress of committal matters through the Local Court. It surely need not be explained how great an adverse effect there would be on the timeliness of committal proceedings if, at every step of the statutory procedure, there was a requirement for the Local Court to independently verify that there had been compliance with the legislative scheme, separate to and regardless of the advice to the court from the litigants. If such a requirement was to be read into the legislation, the expeditious prosecution of serious criminal allegations, in which the community has a strong interest, would be stymied. That potentially disastrous outcome of itself points to a conclusion that there is no precondition to the exercise of jurisdiction of the nature contended for. The observations of Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7 at 391 are apposite: "… if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed."
15. An outcome which is "so inconvenient" does not support the construction of s 67 for which the plaintiff contends. It would be curious indeed if the legislature intended s 67 to operate in such a way as to cause extensive delay in the prosecution of serious criminal matters, and so burden the Local Court as to make its committal jurisdiction impractical to implement.
16. Section 67 did not require an inquiry of the nature posited to ascertain an objective fact. Her Honour had the power under the section to fix a date for the charge certificate to be filed as long as the date was a day after the brief had been served and, subject to s 67(3), that the day was no more than 6 months from the commencement of committal proceedings. It is the second of those provisions, grounding the second part of this complaint, to which I now turn.
17. As noted at [17] above, the plaintiff was legally represented on 4 August 2022, and it was his solicitor who initially advised the Magistrate that it would be necessary for the matter to be adjourned for six weeks for "phone evidence and charge certification". Mr Haddad referred to the plaintiff's previous solicitors as having been in correspondence with the DPP about "agreeing to a six-week adjournment", and specifically stated "We have no issue with that". The plaintiff disputes the accuracy of what the Magistrate was told. He asserts that his instructions were to oppose any adjournment or extension of time, and that he made his refusal of consent known to his solicitor and the court.
18. The latter assertion is contradicted by the record of the Local Court, both in the transcript of the proceedings of 4 August 2022 and in the orders of the court as endorsed on the Bench Sheets. What both documents record is to the opposite effect - that the plaintiff consented to the adjournment. The Magistrate was very clearly advised by the solicitor who was on the record as instructed by and acting for the plaintiff that there was a need for an extended period for the filing of the charge certificate, and that the plaintiff consented to that course. Indeed, that was the very first thing the Local Court was told when the matter was mentioned by Mr Haddad. Whilst the plaintiff, sitting somewhere in the courtroom, may have uttered the word "no", with or without the emphasis presumably intended to be conveyed by the use of multiple exclamation marks in his affidavit, he took no meaningful step to convey to her Honour his refusal to consent to an adjournment. It would have been an easy matter for the plaintiff, on hearing his solicitor tell the court that he consented to an adjournment, to immediately approach his solicitor and make his instructions clear. It would have been equally straightforward for him, as a party to the proceedings, to tell the Magistrate that. The plaintiff did neither of those things and the matter properly proceeded on the basis that he had consented to the orders to be made that day.
19. In these circumstances, her Honour was well justified in concluding that the basis for the exercise of the power provided by s 67(3)(a) was established, empowering the court to "set a day for the filing of a charge certificate that is later than 6 months after the first return date for a court attendance notice in the committal proceedings".
20. The plaintiff contends that whether an accused person consents for the purposes of s 67(3)(a) is a jurisdictional fact which is dependent upon the objectively ascertained fact of consent. For the same reasons given with respect to the first part of the plaintiff's complaint concerning the 4 August 2022 orders, that cannot be correct. There is nothing in the text of the provision that mandates or even suggests such a construction. Further, there are very strong reasons of public policy and common sense that militate against a conclusion that the legislature intended to confer powers under the CP Act that are conditional upon the actual existence of an objectively ascertained set of facts. I have referred already to the potentially disastrous consequences for the efficiency and timeliness of committal proceedings if the powers of the Local Court were so conditioned. That applies to the exercise of the power provided by s 67(3) in the same way as it does the exercise of power provided by s 67(2). The interest of the legislature and the community in seeing criminal proceedings proceed in a timely way does not favour a precondition to the exercise of power. The interests of accused persons and the community in the maintenance of legal professional privilege similarly does not favour the existence of any precondition.
21. A court cannot be expected or required to go behind the advice provided to it by the legal representative of a party to proceedings before it but must be permitted to rely upon what it is told, unless some feature apparent to the court without inquiry makes such reliance untenable. There was nothing that prevailed on 4 August 2022 that would have given rise to a need for the Magistrate to go beyond what she was told by the solicitor appearing in the proceedings on the plaintiff's behalf. She was entitled to accept that consent had been given, and the orders she made were pursuant to the power bestowed on the Local Court by the CP Act.
22. Even had the plaintiff taken some reasonable step to make the court aware that he did not consent to any extension of time or adjournment, that would not have been determinative of the issue, since s 67(3)(b) provides an alternative basis upon which the power to extend the date for the filing of the charge certificate may be exercised. Under s 67(3)(b) the power is enlivened if "it is in the interests of justice" to make the necessary order. As can be seen from the transcript extracted at [18] above, her Honour was provided with sufficient information by the prosecutor appearing on 4 August 2022 to make an order pursuant to s 67(3)(b), particularly bearing in mind the critical importance of criminal allegations proceeding to proper determination by a court.
23. The plaintiff has failed to make out any error of jurisdiction in the orders of the Local Court of 4 August 2022.

The Orders of 15 September 2022

1. The plaintiff's complaint concerning the invalidity of the orders made on 15 September 2022 by Magistrate McIntyre is conditional upon the orders of 4 August 2022 being held to be void. I have concluded that the orders of that day were not made ultra viries and are not void. Thus, the orders of 15 September 2022 cannot be void on that derivative basis. The charge certificate was filed by the prosecution that day with no further order or decision required to be made by Magistrate McIntyre. The prosecution was, in filing the certificate, complying with the orders of 4 August 2022, and "steps taken to give effect to those orders had themselves no effect on [...] legal rights": Lazarus v Kane [2019] NSWCA 194, at [20].
2. Insofar as the plaintiff argues that the Magistrate was in jurisdictional error in failing to consider his argument that the committal proceedings should not progress, there was no error. Magistrate McIntyre correctly regarded certification as a procedural matter, against the background that the legitimacy of the orders of 4 August 2022 was to be considered by the Supreme Court, with this Court having refused a stay.
3. To the extent that the plaintiff contends that the orders of her Honour are void because a complete brief of evidence had not been served as at 15 September 2022 when the charge certificate was filed, that contention too must be rejected. It is not without significance that, unlike other provisions in Part 2 of the CP Act, there is no consequence stated in s 61 for non-compliance with brief service orders. Although the plaintiff argues that non-compliance will invalidate later orders of the court, including orders for the filing of a charge certificate, there is nothing in s 61 to support that contention, and there is nothing in s 66 or in the CP Act more broadly that supports a view that a charge certificate is invalid in the absence of a full brief. A brief that is "compliant" for committal purposes may not be a "full brief" for the purposes of any later trial, and that is, in any event, a matter for the prosecutor, and not the court to determine. The continuing obligation of disclosure on the Crown requires continuing and prompt service of additional material upon an accused person when it is obtained, even if material has not been obtained at brief service stage.
4. The charge certificate was filed on 15 September 2022 in accordance with an order of the Local Court that was validly made by the court on 4 August 2022. Thus the powers exercised by the Local Court on 15 September 2022 were not made without power or invalid.

A Stay of the Prosecution

1. Whilst there was no application for a stay of the criminal proceedings in the Third FAS filed by the plaintiff, he sought such an order in the Second FAS and, had he been granted an adjournment of the hearing on 4 October 2023, the Court was advised that he intended to pursue an application of that nature. As the plaintiff is unrepresented, it may assist him to better understand the Court's refusal to grant an adjournment if the question of a stay is addressed, at least to the extent that it can be in the absence of full argument from the parties.
2. A stay of a criminal prosecution is an extremely rare remedy, granted only in the most extraordinary of circumstances. That is because there is an overriding public interest in seeing allegations of criminal conduct determined by a court and determined expeditiously. The applicable principles are well established. For a permanent stay of a criminal prosecution to be granted, there must be a fundamental defect going to the root of the trial such that nothing a trial judge could do would relieve against the unfairness occasioned to the accused: Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48 at 111; Jago v The District Court of New South Wales (1989) 168 CLR 239; [1989] HCA 58 at 34; The Queen v Glennon (1992) 173 CLR; [1992] HCA 16 592 at 605; Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 at 245. Underlying the power of the court to grant a permanent stay is the court's inherent jurisdiction to prevent an abuse of its process, as was observed by Richardson J in Moevao v. Department of Labour [1980] 1 NZLR 464 at 482: "The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor [...] that the Court processes are being employed for ulterior purposes or in such a way ... as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognized purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court."
3. That formulation of the principle was cited with approval by Mason CJ in Jago at 30.
4. Since the categories of circumstances that will demand a stay of proceedings is not closed, it is necessary to evaluate the particular circumstances relied upon by the plaintiff, weighed in the context of the multifaceted public interest considerations that apply, including the maintenance of public confidence in the administration of the criminal justice system: Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 at 395-396; Dupas at 251 [37]. The public interest in ensuring that those charged with criminal offences, particularly serious crimes such as sexual assault, will face trial is a very significant feature to be considered in that evaluative process. In Darwiche v R [2011] NSWCCA 62, the process was described at [172] thus: "A permanent stay of criminal proceedings is a wholly exceptional intervention into the processes of the criminal law, and the public interest in ensuring that persons charged with crimes are tried ought to carry significant weight in the necessary balancing process where a stay is sought: R v WRC [2003] NSWCCA 394; 59 NSWLR 273 at 282 [55]-[56]; Dupas v The Queen [2010] HCA 20; 241 CLR 237 at 251 [37]. The onus of satisfying the court that there is an abuse of process lies upon the party alleging it and the onus is a heavy one: Williams v Spautz [1992] HCA 34; 174 CLR 509 at 529. The question of whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations, including the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice": Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 395-396.
5. The principles applicable to a stay sought "until further order", as sought by the plaintiff in the Second FAS, are not greatly different to those applicable to a permanent stay. Although their operation is moderated to some extent by the prospect of a court later permitting the prosecution to proceed, perhaps on the basis that some condition is fulfilled, the remedy is still an extraordinary one, to be granted only where the court's processes are, or are in danger of being, abused. As the plaintiff did not specify any basis upon which any order for a stay of prosecution would be revisited by the Supreme Court, the extent of the stay he sought is unclear. The claim to this Court has already achieved a de facto temporary stay of the prosecution, even where the Court formally refused to grant a temporary stay in its ruling of 9 September 2023. What more the plaintiff might contend is appropriate is not known.
6. As to the reason for a stay, the plaintiff pointed in earlier submissions and claims to the unfairness to him in the initial delay in the preferral of charges and the subsequent delay in serving all material known to the prosecution upon him in an expeditious manner. He seems to have been particularly concerned by the failure of the prosecution to make available to him Cellebrite downloads from his and the complainant's mobile telephones. The plaintiff has emphasised the difficulties occasioned to him by the commencement of the prosecution - at all, and by its tardiness - and by the delayed service of all relevant evidence. He complained that evidence that might have been secured, such as security footage from his apartment building, has been lost to him, and the drawn-out nature of the committal proceedings have adversely affected both his employment and his capacity to pursue an application for Australian citizenship.
7. Giving these features full weight, it must be at least extremely unlikely that a second application for a stay of the criminal proceedings would have enjoyed any greater success than did the first application for a stay, which was dismissed by Chen J in September 2022. None of the factors to be weighed in the balance that are relied upon by the plaintiff are unusual or extraordinary, and nothing about the police investigation or the progress of the prosecution in the Local Court has occasioned real prejudice to him, much less incurable or unfair prejudice of the kind that might militate in favour of a stay. It is not uncommon for sexual assault allegations to be made at a time well after the incident giving rise to the complaint. Complainants often experience complex emotions including fear, shame, and embarrassment surrounding the alleged offence, and there is not infrequently a delay in bringing a complaint to the attention of the authorities for investigation. It is not unusual for evidence that might have been secured by prompt complaint and investigation, whether inculpatory or exculpatory, to be lost. Even where the consequences for an accused of very lengthy delay have been significant, including the loss of potentially important evidence, a stay of the prosecution is not ordinarily regarded as an available remedy.
8. That point has been made by the courts on many occasions: R v Tolmie (Court of Criminal Appeal (NSW), 7 December 1994, unrep); R v VPH (Court of Criminal Appeal (NSW), 4 March 1994, unrep); R v Davis (1995) 81 ALR 156; R v Geoghegan [1999] NSWCCA 20; R v Kenny [2000] NSWCCA 364; R v FMD [2002] NSWCCA 14; R v H (2002) 132 A Crim R 551; [2002] NSWCCA 355; R v RD [2016] NSWCCA 84; Dawson v R [2021] NSWCCA 117; Camelo-Gomez v R [2022] NSWCCA 108. In some of these cases, the delay in bringing the prosecution has been in the order of decades, and has been accompanied by other features, such as the death of witnesses, the loss of documentary or forensic evidence, and extraordinary media attention. Even so, no stay was granted.
9. The plaintiff has not suffered any prejudice of the nature considered in these cases. He asserts that surveillance footage that might have been obtained has been lost but, even if there had been an immediate complaint to police such that footage not kept beyond 5 weeks could have been preserved, there is no reason to conclude that it would have shown anything of real relevance. On both the account of the complainant, and that of the plaintiff, their meeting at the entrance to the apartment building was unexceptional, and consensual mutual touching and kissing occurred in the elevator. There could be no reasonable expectation that evidence of assistance to either party would be obtained from the security footage. Similarly, on neither the complainant's account nor the plaintiff's is there reason to think any significant admissible evidence may be obtained from the mobile telephone data. The affidavit of Sen. Con. Fox makes it clear that call charge records show that there was no telephone traffic between the plaintiff and complainant. Geo-location information will not be important, since there is no dispute that the complainant met the plaintiff at the latter's apartment on the time and date given.
10. If there is some forensic disadvantage occasioned to the plaintiff in the criminal prosecution by virtue of delay, it can be dealt with in directions to the jury by the trial judge.
11. The personal disadvantages the plaintiff says he has suffered because of the criminal proceedings, whilst no doubt distressing for him, are not features that can prevent the determination before the courts of a serious criminal allegation.
12. In short, there is no basis to conclude that a stay would be granted to the plaintiff beyond the de facto stay he has already achieved by pursuing a claim for judicial review in this Court, had further time been allowed to him to pursue such an application by a sixth version of his claim.
13. The other relief sought by the plaintiff in the Second FAS which he advised the Court on 4 October 2023 he required an adjournment to pursue (in a document marked MFI 1 that day) is directed to judicial review of decisions made by the DPP. Decisions taken by the Director in the exercise of her function are not amenable to judicial review.

The Question of Relief

1. The relief which the plaintiff seeks from this Court is discretionary. There are a number of powerful considerations which tend against granting the relief sought, even had the Court concluded there was merit in his arguments.
2. Firstly, there is the long line of authority which militates against interference in the conduct of criminal prosecutions, because of the legitimate concern as to the dangers of fragmenting the criminal justice process. In Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, Kirby P summarised, at 599-600, the principle in this way: "The High Court of Australia and this Court have repeatedly emphasised the undesirability of interference - whether by declaration or otherwise - in the conduct of criminal proceedings. Such interference is reserved to exceptional or special cases: see Sankey v Whitlam (1978) 142 CLR 1 at 22, 23, 24; Barton v The Queen (1980) 147 CLR 75 at 104; Lamb v Moss (1983) 76 FLR 296 at 307-308; 49 ALR 533 at 545; Bacon v Rose [1972] 2 NSWLR 793 at 797: Cain v Glass (No 2) (1985) 3 NSWLR 230 at 235. More than lip service must be given to injunctions of this kind. They are based upon the high public interest in the orderly conduct of criminal proceedings, which include the sentencing of persons convicted following a plea. They rest upon the avoidance of interruption of such proceedings by those who have access to funds and a determination to manipulate criminal prosecutions. The availability of appellate procedures following conviction and sentence and the possibility that many problems disappear, or are resolved, at first instance if only cases are allowed to take their ordinary course provide further reasons to restrain an over-enthusiastic response to interlocutory claims for judicial review of criminal proceedings."
3. The importance of this principle has been stressed in many other decisions of the higher courts, including Re Rozenes; Ex parte Burd (1994) 68 ALJR 372 at 373; Chief Executive Officer of Customs v Jiang [2001] FCA 145; 111 FCR 395 at [7]-[12]; Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162; and Woodhouse v Director of Public Prosecutions [2015] NSWCA 40. The harm potentially done by undetermined criminal allegations, and the strong public interest in the expeditious finalisation of such matters, was emphasised in Seymour v Attorney-General (Cth) (1984) 4 FCR 498 at 501: "The longer such an accusation remains unresolved the greater the risk of serious harm to the community. Those risks are multifarious: the fading of witness's recollections, the diminution of public confidence in the administration of the criminal law, the prolonging of fears and hatreds which the resolution of criminal charges tends to allay, and uncertainty as to the course which the life of the accused is to take, and not infrequently uncertainty as to the courses of other lives, are perhaps the more obvious and the most common. Those considerations of public interest are of great weight …"
4. As I observed at the outset, committal proceedings that, but for the claim for relief in this Court made by the plaintiff, would likely have concluded in late 2022 with a possibility that the plaintiff's trial would have also concluded or be nearing completion by now, remain before the Local Court with no progress made over the last twelve months. This much delayed claim has in effect halted a criminal prosecution for a very serious charge. That is an outcome not to be countenanced except in "exceptional or special cases". The plaintiff's case attracts neither of those adjectives.
5. Secondly, the significance of the evidence that had not been served upon the plaintiff by 4 August 2022, or by 15 September 2022, appears to have been limited, with its absence occasioning little to no prejudice to the plaintiff. Where outstanding evidence had or may have had some significance, Sen. Con. Fox deposed in his affidavit of 19 July 2023 that it has been served progressively. It appears that nothing is now outstanding. As Kirby P foresaw in Chow, a problem that appeared early in the criminal prosecution has been resolved.
6. The plaintiff relied upon a document prepared by Sen. Con. Fox that was attached to the brief as served on 6 July 2022 and which related to "Outstanding Brief Items" (CB263). That document was to some extent speculative and, with the passage of time, has proven to include material that did not then exist, and which will probably never exist. For example, the statement of Constable Julian Scott did not exist in 2022 and does not exist now; it has not been "obtained". Since the officer did no more than download data from the plaintiff's mobile telephone to a storage device using the Cellebrite computer programme, it is hard to see how the absence of a statement from him could cause prejudice. The download itself is not, pursuant to s 281C of the CP Act, required to be served. It is the subject of Sensitive Evidence notices first served on the plaintiff on 11 December 2022 and is available to the plaintiff to inspect. All telephone evidence including data from Instagram has been available to the plaintiff since May 2023.
7. It appears that the brief has been "EAGP compliant" since July 2022.
8. Thirdly, the final order sought by the plaintiff, an order in the nature of mandamus, is an order requiring the Local Court to list the criminal matter so that a Magistrate might consider discharging the plaintiff or adjourning the committal proceedings, pursuant to s 68(2) of the CP Act. The order sought is something that the plaintiff could have asked the Local Court to make without interference from this Court. It was open to the plaintiff to submit to the Local Court that the charge certificate was not filed in accordance with law and ask the court to discharge him or adjourn the committal proceedings. The judicial review proceedings were not required before such an application could be made.
9. Finally, even had the plaintiff achieved the outcome he most desired - an order discharging him with respect to the criminal charges before the Local Court - it is highly unlikely that any such order would prevent the Director from bringing him to trial for sexual assault. It is always possible where an accused person is discharged in the Local Court due to some administrative failure, such as failure to file a charge certificate on time, that the person might be arrested and charged anew, with the committal proceedings commencing again. A discharge under the CP Act does not involve any determination of guilt on the merits and no defence of autrefois acquit or autrefois convict is available. It would be open to an accused who was charged for a second time to seek a stay on the basis of an abuse of process, but any such application would have to meet the very significant evidentiary burden for the grant of a stay.
10. Further, the Director has the power to present an ex officio indictment against an accused person, notwithstanding any decision by the Local Court to discharge that person at committal: s 8(2) of the CP Act. In Kolalich v DPP (NSW) (1991) 173 CLR 222; [1991] HCA 47, the High Court observed at 227 that: "The DPP clearly has power to present an ex officio indictment charging a person with an offence notwithstanding that the committing magistrate has declined to make an order committing [the accused] for trial on a charge of that offence".
11. The Director regularly exercises that power. In the present case, were the plaintiff to have been discharged in the Local Court it must be at least very likely that an ex officio bill of indictment would have been found and presented against him in the District Court. He could have sought a stay of that prosecution but the same heavy burden would fall upon him to establish that there had been an abuse of process or that any trial could not be fair. Applications of that nature have been dismissed in the past where the presentation of an ex officio indictment denied a child the more gentle and more lenient jurisdiction of the Children's Court on a prosecution for sexual offending (in PM v The Queen (2007) 232 CLR 370; [2007] HCA 49); defeated the decision of a Magistrate to deal with an accused person summarily, rather than by committal for trial (in Iqbal v R [2012] NSWCCA 72); or prevented an accused from being dealt with summarily following a guilty plea (in Johnston v Director of Public Prosecutions (NSW) [2021] NSWSC 333).
12. Those considerations all tell heavily against the success of the plaintiff's claim. In my judgment, it has been a claim with little merit, pursued in the face of what can be assumed to be sound legal advice to allow the committal process to proceed as the best means of finalising the criminal prosecution. [4]

The Question of Costs

1. The usual rule is that costs should follow the event. The plaintiff brought these proceedings in the face of legal advice to allow the committal proceedings to unfold in the usual way. He persisted with them despite the warning sounded by Chen J in September 2022, and in the face of correspondence and a Notice of Motion from the first defendant which pointed to the likely futility of continuing with his claim. The usual rule should prima facie apply.

orders

1. The orders that the Court makes are these: 1. Insofar as it is required, leave is granted to file in court on 4 October 2023 the Third Further Amended Summons; 2. The Third Further Amended Summons is dismissed; 3. Subject to order (4) costs in favour of the first defendant; 4. If any party seeks any different order as to costs, any evidence and written submissions in support, with a total page limit of 5 A4 pages, are to be filed and served by 25 November 2023 (by the plaintiff); with any evidence or submission in reply to be filed 7 days thereafter, similarly limited to 5 pages.

Endnotes

1. That evidence is the affidavit of the plaintiff of 27 November 2022, producing Exhibit SB-1; and, for the Director, affidavits from Dominque Kelly of 23 June 2023 and Mitchell Fox of 19 July 2023; together with material from the Local Court record. Objection was taken by the Director to portions of the plaintiff's affidavit, set out in a schedule of objections. The objections are valid, and those portions of the plaintiff's evidence to which objection has been taken are excluded for the reasons expressed in the Director's schedule of objections. Bearing in mind that the plaintiff is unrepresented I have, however, had regard to the excluded portions of the affidavit as submissions or arguments, if not evidence.
2. At that stage, the Commissioner of Police and the plaintiff's former solicitor were both named as defendants in addition to the DPP and the Local Court.
3. The scheme to resolve matters at an early stage by plea is referred to as "the EAPG" - the Early Appropriate Plea of Guilty scheme.
4. The plaintiff himself deposes to having received such advice from lawyers (at CB113). Although I think it most unlikely that the advice was delivered in the terms claimed by the plaintiff in his affidavit, treating the assertions as submissions I accept that advice to allow the committal proceedings to proceed was given to him. It is, after all, sensible advice that would have saved the plaintiff a great deal of time, stress, and resources, had he accepted it.

Amendments 23 October 2023 - Dictation error - leave instead of relief - amended. 13 August 2024 - Publication restriction lifted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 August 2024