Commonwealth Director of Public Prosecutions v Haddad, Daher & Ors

The Crimes Act

1. Section 85 of the Crimes Act provided: "85 Institution of prosecution (1) A prosecution under this Part shall be instituted only by or with the consent of the Attorney‑General or of a person acting under his or her direction but a person charged with an offence against this Part may be arrested, or a warrant for his or her arrest may be issued and executed, and he or she may be remanded in custody or on bail, notwithstanding that the consent of the Attorney‑General or a person acting under his or her direction has not been obtained, but no further proceedings shall be taken until that consent has been obtained. (2) Nothing in this section shall prevent the discharging of the accused if proceedings are not continued within a reasonable time."
2. Section 85 was contained in Pt VII of the Crimes Act. Section 79 relevantly provided: "79 Official secrets ... (3) If a person communicates a prescribed sketch, plan, photograph, model, cipher, note, document or article, or prescribed information, to a person, other than: (a) a person to whom he or she is authorized to communicate it; or (b) a person to whom it is, in the interest of the Commonwealth or a part of the Queen's dominions, his or her duty to communicate it; or permits a person, other than a person referred to in paragraph (a) or (b), to have access to it, he or she commits an offence. Penalty: Imprisonment for 2 years. ... (6) If a person receives any sketch, plan, photograph, model, cipher, note, document, article or information, knowing, or having reasonable ground to believe, at the time when he or she receives it, that it is communicated to him or her in contravention of subsection (3), he or she commits an offence unless he or she proves that the communication was contrary to his or her desire. Penalty: Imprisonment for 2 years."
3. Section 79 was also contained in Pt VII of the Crimes Act. Hence, the Attorney General's consent was required for the institution of the prosecutions of Mr Haddad and Mr Daher for offences against s 79.
4. In September 2018 the office of the Commonwealth DPP ascertained that the consents required for the institution of prosecution for offences under s 79 of the Crimes Act had not been obtained in either the matters concerning Mr Haddad or Mr Daher.
5. Initially, the DPP proposed making annulment applications to the Local Court under s 4 of the Crimes (Appeal and Review) Act 2001 (NSW). Such an application was filed in relation to Mr Daher's convictions. Following the receipt of advice from counsel, the DPP decided to withdraw that application. Instead, the DPP has filed a summons seeking declarations that the Local Court did not have jurisdiction to convict Mr Haddad and Mr Daher of the offences contrary to s 79 of the Crimes Act, did not have jurisdiction to sentence them in relation to those offences, and that the District Court did not have jurisdiction (in the case of Mr Haddad) and does not have jurisdiction (in the case of Mr Daher) to determine their appeals against sentence. Orders in the nature of certiorari are also sought to quash the convictions and sentences imposed and an order in the nature of prohibition is sought to prevent the District Court from proceeding to determine Mr Daher's appeal against his sentence.
6. As noted above, Mr Haddad and Mr Daher do not oppose the relief sought. It should be recorded that counsel for Mr Daher has stated: "[He] wishes to have acknowledged both in this Court and in any subsequent proceedings that he did not take any point that would in any way diminish his plea of guilty or for that matter derogate from the plea of guilty when he ultimately comes to be sentenced for these matters, as it is intended that he will be re-charged and when he is so re-charged, will enter a plea of guilty and complete the sentencing proceedings."

Disposition

1. The helpful submissions provided by Mr Narula of counsel acting for the DPP refer to a consistent line of authority stemming from The King v Bates [1911] 1 KB 964 that in circumstances such as the present, where the consent of the Attorney General was required for the institution of prosecutions, the failure to obtain the consent deprived the court of jurisdiction to deal with the offence charged (The King v Bates at 965; Berwin v Donohoe (1915) 21 CLR 1 at 27, 38; McDonnell v Smith (1918) 24 CLR 409 at 412; R v Angel [1968] 1 WLR 669 at 670; O'Sullivan v Truth & Sportsman Ltd [1955] SASR 85 at 87).
2. The failure to comply with a statutory precondition to the institution and maintenance of the prosecutions amounts to jurisdictional error (Spanos v Lazaris [2008] NSWCA 74 at [15]).
3. There were no appeals to the District Court from the convictions in the Local Court. Mr Haddad's successful appeal against sentence would preclude any challenge to the Local Court's sentence until the sentence of the District Court is set aside for jurisdictional error (Wishart v Fraser (1941) 64 CLR 470 at 478; [1941] HCA 8; Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [11]-[14]). Where the order of the District Court following an appeal from the Local Court is quashed for jurisdictional error, and only one conclusion is available as to the outcome of the proceeding in the Local Court, the Local Court's decision can also be set aside (Bindaree Beef Pty Ltd v Riley (2013) 85 NSWLR 350; [2013] NSWCA 305 at [91]; Dyason v Butterworth [2015] NSWCA 52 at [34]-[35]). That is the position.
4. An extension of time for the filing of the summons for judicial review is required. The reason for delay is explained. The principle of legality must be maintained. The required extension of time should be granted.
5. No party seeks an order for costs.
6. Accordingly, the orders of the Court are: 1. order that the time for the filing of the summons be extended up to and including 25 January 2019. 2. declare that the District Court of New South Wales ("the District Court') lacked jurisdiction to determine the first respondent's appeal against sentence in relation to the offence against s 79 of the Crimes Act 1914 (Cth) ("the Crimes Act") in circumstances where there had been non-compliance with s 85 of the Crimes Act. 3. order that the determination of the District Court of 28 July 2017 in relation to the first respondent in relation to the offence charged under s 79(3) of the Crimes Act be quashed. 4. declare that the Local Court of New South Wales ("the Local Court") lacked jurisdiction to determine the first respondent's sentence in relation to the offence against s 79 of the Crimes Act in circumstances where there had been non-compliance with s 85 of the Crimes Act. 5. order that the conviction and sentence of the first respondent by the Local Court on 7 February 2017 for the offence against s 79 of the Crimes Act be quashed. 6. declare that the District Court lacks jurisdiction to determine the second respondent's appeal against sentence in relation to offences against s 79 of the Crimes Act in circumstances where there has been non-compliance with s 85 of the Crimes Act. 7. order in the nature of prohibition that the District Court be prevented from proceeding to determine the second respondent's appeal against sentence in relation to the offences against s 79 of the Crimes Act. 8. declare that the Local Court lacked jurisdiction to convict and sentence the second respondent in relation to the offences of which he was charged against s 79 of the Crimes Act in circumstances where there had been non-compliance with s 85 of the Crimes Act. 9. order that the conviction and sentence of the second respondent by the Local Court in relation to offences contrary to s 79 of the Crimes Act be quashed. 10. no order as to costs.

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: 26 March 2019