Director of Public Prosecutions (Cth) on behalf of the Director of Public Prosecutions (NSW) v El Ali, Khoder

The CANs

1. Given the nature of the accused's contentions that the State CANs should be discharged, it is instructive to set the individual averments in the CANs, and they are: 1. Matter 2014/30842 alleges an offence under s 11.5(1) of the Criminal Code (Cth) and s 233BAB(5) of the Customs Act 1901 (Cth), shortly described as a "[c]onspiracy to import Tier 2 goods without permission...[b]etween about 27 July 2011 and about 13 March 2012". The short particulars are, "[d]id conspire with one or more of Ahmed KARNIB, Andrew BOTROS or divers other person to, without requisite permission, intentionally import prohibited Tier 2 goods, comprising firearms parts and firearms magazines, the importation of which was prohibited under the Customs Act". On 28 February 2014 the accused pleaded guilty to this charge and awaits committal for sentence pending the resolution of the State offences before the Court. The CAN was laid by Detective Sergeant Fabio Furia, NSW Police Force, State Crime Command-Firearms and Organised Crime, on 26 March 2013. 1. Matter 2012/81506 (H47219172) Sequence 2 alleges an offence under s 51D(2) of the Firearms Act 1996 (NSW), described as "[c]onspire to possess more than [three] unregistered firearms including prohibited firearm or pistol…[b]etween about 27 July 2011 and about 13 March 2012 at Sydney, NSW, and elsewhere...Khoder EL ALI did conspire with one or more of Ahmed KARNIB, Andrew BOTROS or a divers other person to possess more than three firearms, at least one of which was a prohibited pistol, in circumstances where the firearms were not registered and none of those persons were authorised by a permit or licence to possess the firearms." The CAN was laid by Detective Sergeant Fabio Furia, NSW Police Force, State Crime Command-Firearms and Organised Crime, on 13 March 2012. 2. Matter 2012/81506 (H47219172) Sequence 3 alleges an offence under s 51B(1) of the Firearms Act, described as "[u]nlawfully sell firearms three times or more within a 12 month period…[b]etween about 10 November 2011 and 9 November 2012 at Sydney, NSW, and elsewhere. Khoder EL ALI did contravene s 51...on three or more separate [occasions] during the period of 12 months between 10 November 2011 and 9 November 2012 inclusive." The CAN was laid by Detective Sergeant Fabio Furia, NSW Police Force, State Crime Command-Firearms and Organised Crime, on 13 March 2012. 3. Matter 2012/81506 (H47219172) Sequence 4 alleges an offence under s 93T(1) of the Crimes Act 1900 (NSW), described as "[p]articipate in criminal group, contribute to criminal activity…between 12:01 am on 27 [July] 2011 and 11:05 am on 13 [March] [20]12 at Wentworth Point. Did knowingly participate in a criminal group knowing that his participation contributed to the occurrence of a criminal activity, to wit, the possession of a firearm or firearms parts by a person not authorised to do so by licence or permit." The CAN was laid by Detective Sergeant Fabio Furia, NSW Police Force, State Crime Command-Firearms and Organised Crime, on 13 March 2012. 4. In Matter 2012/81507 (H47145911) the accused is also charged with fifteen offences under s 70 of the Firearms Act; namely, that in connection with applications made under the Firearms Act or the Regulations thereunder he did provide information that he knew to be false or misleading in a material particular. These offences are Table 2 offences under the Criminal Procedure Act and the NSWDPP has elected to deal with these offences on indictment although they have not formed part of the current hearing with the other Commonwealth and State offences. Those CANs were laid by Detective Gilbere Gassin, NSW Police Force, State Crime Command-Firearms and Organised Crime, on 13 March 2012.
2. Although the CANs for the State offences were laid by officers of the NSW Police Force on the available evidence, the court is satisfied that they were taken over by the NSWDPP by 8 May 2012 (the NSWDPP's first appearance), or by no later than 16 May 2012. It appears no notice in writing was sent to the Registrar of Central Local Court or the Court itself, as there is no written notice on the Court's papers that the NSWDPP had taken over the State charges under ss 10(1)(a) or (b) of the Director of Public Prosecutions Act 1986 (NSW) ("DPP Act"). However, s 10(4) of the DPP Act provides that a failure to to give such notice does not affect the NSWDPP's functions in relation to the matter: Price v Ferris (1994) 34 NSWLR 704 at 708F.
3. Having taken over all of the State charges under s 9(1)(a) of the DPP Act, the NSWDPP is deemed to be the prosecutor at the exclusion of Detective Sergeant Fabio Furia and Detective Gilbere Gassin: Price v Ferris (supra) at 707D - 709A-E, and 714E.
4. The issue is whether the CDPP had the power to carry on the hearing of the committal proceeding for the State charges as argued, in its own right and on behalf of the NSWDPP, by the CDPP.

Did the CDPP have the Power to Prosecute the State Offences?

Chronology

1. The following chronology assists in determining this issue: 1. The CANs for the State offences first came before Central Local Court on 14 March 2012. It appears, as is the usual case, that a police prosecutor appeared on the first mention. The matter was adjourned to 8 May 2012 for reply to brief service orders. 2. It appears that on 8 May 2012 there were separate appearances for the CDPP and the NSWDPP. The matter was adjourned to 7 July 2012 again for reply, and further brief service orders were made. 3. On 7 July 2012 only a single appearance, seemingly by a NSWDPP officer, was noted on the Court's papers. The matter was adjourned to 18 September 2012 again for reply, and further brief service orders were made. 4. On 18 September 2012 there were separate appearances for the CDPP and the NSWDPP. The matter was adjourned to 30 October 2012 again for reply, and further brief service orders were made. 5. On 30 October 2012 there were separate appearances for the CDPP and the NSWDPP. The matter was adjourned to 27 November 2012 again for reply, and further brief service orders were made. 6. On 27 November 2012 there were separate appearances for the CDPP and the NSWDPP. The matter was adjourned to 5 February 2013 again for reply, and further brief service orders were made. 7. On 5 February 2013 there was an appearance by a CDPP officer but no appearance for the NSWDPP. The CDPP in its written submissions, stated that the CDPP officer, Anthony Powell, a legal practitioner and staff member of the Office of the CDPP appearing as authorised under s 15 of the Director of Public Prosecutions Act 1983 (Cth) ("CDPP Act") informed the Court that the, "[CDPP] had taken over the conduct of the prosecution of the existing State offences from the NSWDPP and that the CDPP elected to prosecute the existing State offences on indictment": MFI "F". While the Court does not have a transcript of those proceedings, nor does its own written record confirm that statement by the CDPP, it will proceed on the basis that the Court was so informed. The accused has not taken issue with this statement and the record of correspondence between the CDPP and NSWDPP (Ex 16, see below) is consistent with that statement. 1. After 5 February 2013 the CDPP exclusively appeared, prosecuting both the Commonwealth and State offences, and appearing at the further mentions on 6 March 2013, 27 March 2013, 1 May 2013, 29 May 2013, 12 June 2013 and 22 July 2013 when further brief service orders being made. 2. On 22 July 2013, the hearing date of the committal proceedings which involved the calling of a number of witnesses for examination by the two other co-accused pursuant to s 91 of the Criminal Procedure Act, was fixed to be held from 9 to 13 December 2013. The accused did not take part in the making of the orders for the examination of the witnesses pursuant to s 91, however did take part in argument as to the admissibility of the paper committal evidence. The contested committal proceedings were heard on 9, 11 and 13 December 2013. The matter was adjourned to 28 February 2014 for submissions on whether the accused should be committed for trial. A timetable for written submissions was fixed. 3. The issue of the CDPP's right to appear for the NSWDPP was first raised in the accused's written submissions dated 26 February 2014. Unfortunately, that issue has since been delayed with the need to issue notices to the Attorneys-General under s 78B of the Judiciary Act 1903 (Cth) ("s 78B Notices") and the unavailability of the Court due to leave.

Correspondence of the CDPP and NSWDPP to "Carry On" the State Offences

1. Formal discussions between the Director of the NSWDPP ("State Director") and the Director of the CDPP ("Commonwealth Director") (together, "the Directors") began on 16 May 2012 when the NSWDPP wrote a letter to the CDPP. In the redacted copy of that letter (Ex 16) the NSWDPP stated, in part: "For the following, I am of the view that it would be appropriate for your Office to have conduct of the prosecution of all charges, Commonwealth and State, against each of the defendants...I would be grateful for your views on the proposed course at your earliest convenience. If you agree to your Office conducting the prosecution of all charges, pursuant to the Instrument of Delegation signed on 22 September 2011, I consent to your Office conducting the prosecution of the defendants for the NSW charges and I elect for the charges under s 70 of the Firearms Act against EL ALI being dealt with on indictment."
2. It seems that further correspondence then ensued between the two Directors because on 24 January 2013 the CDPP wrote to the NSWDPP and, after referring to a series of correspondence, stated, in part: "…and your request that this Office take over the prosecution of the State offences…it has been decided to accede to your request."
3. Since this issue arose, written submissions exchanged as well as the issue of the s 78B Notices (no Attorney-General has determined to intervene to the present), the NSWDPP wrote to the CDPP on 1 May 2014 and stated, in part: "In particular, I agree with your reliance on [ss 6(1)(m), (n) and 17 of the CDPP Act and s 33 of the DPP Act] and the related instruments...I also note that s 6(2)(b) of the [CDPP Act] provides for the Director to exercise such other functions as are prescribed. For the purpose of this provision, cl 3(1)(a) of the Director of Public Prosecutions Regulations 1984 (Cth) allows the Commonwealth Director to carry on committal proceedings instituted by a State officer...In the event that it is necessary to rely on any further or alternative basis for the Commonwealth Director's authority to conduct these proceedings…I authorise the Commonwealth Director to appear as my agent with respect to the [NSW] charges, being sequences 2 to 4, and to continue to carry on the committal proceedings with respect to those charges". (This letter now forms part of Ex 16).

The Relevant CDPP Instruments of Appointment/Consent to Prosecute under State Law and NSWDPP Instrument of Delegation and Order

1. The Directors rely upon the five instruments in Ex 16 issued respectively under their enabling Acts which they submit confer power on the CDPP to prosecute the State offences.
2. For present purposes, at the time of the commencement of, and continuation of, the committal proceedings for the State offences, the following various instruments establish the appointment of Robert James Bromwich SC as the Commonwealth Director: 1. consent by the Commonwealth Attorney-General, pursuant to ss 6(1)(m) and 17 of the CDPP Act for Robert Bromwich SC and for the persons specified in the relevant Schedules, being staff members of the CDPP, including Paul Shaw, to "...holding an appointment to prosecute offences against the laws of [NSW]"; and 2. two Instruments of Delegation and Order under s 33(1)(c) of the DPP Act by the NSWDPP delegating to Robert Bromwich SC and staff members of the CDPP, including Paul Shaw, in part: "2. Delegate to the persons listed in the Schedule, who have been approved by the Attorney General for the State of [NSW], my functions and responsibilities; a) To institute and conduct committal proceedings for indictable offences…" The two delegations cover the period 8 February 2013 to 12 June 2013 and 12 June 2013 to date. The Instrument of 8 February 2013 revoked: "1. All delegations issued to members of the [CDPP]…" Those prior Instruments have not been tendered (the accused has raised no issue in this regard) and ostensibly they were in similar terms. In the absence of evidence to the contrary the Court will proceed on the basis of presumptive regularity that the prior delegations were in similar terms.
3. The CDPP relies upon both the Commonwealth Attorney-General's consent and the NSWDPP's delegation to Paul Shaw, a staff member of the CDPP, as it was he who made the decision to agree to the NSWDPP's consent to carry on the committal proceedings for the State offences.

The Parties' Contentions

1. The thrust of the accused's objection to the CDPP's power to appear and prosecute the committal proceedings for the State offences is that he had no power to "take over" the State offences under s 9(5)(a) of the CDPP Act: see MFI "E". Consequently, the announcement in Court on 5 February 2013 by the CDPP officer, Anthony Powell, that the "CDPP had taken over the conduct of the prosecution of the existing State offences", presumably under s 14(1)(a)(i) of the CDPP Act, was without power as the CDPP Act confers no power to "take over" State offences. From the Court's analysis of the CDPP Act so much may not be disputed (the CDPP does not submit otherwise). In those circumstances, the accused submits that only the NSWDPP has the power to institute or carry on the committal proceedings for the State offences. The CDPP could only do so in the right of the State of NSW as the person instituting the proceedings, which has not occurred: see R v Fukusato [2002] QCA 20; [2003] 1 Qd R 272 per McMurdo P at [48] and Thomas JA at [47].
2. The CDPP responds that it did not in fact take over (presumably a poor choice of words) the State charges, "but rather to have assumed the responsibility, in response to a request from the [NSWDPP]…to carry on the conduct of the prosecution of the committal proceedings for offences against the laws of the State of [NSW]": see MFI "F".
3. The CDPP further responds it had the right to "carry on" the proceedings for the State offences under s 17 of the CDPP Act (s 6(1)(m) is in identical terms, save for the recipient of consent), "[w]here a [staff] member of the [CDPP], with the consent of the Attorney-General, holds an appointment to prosecute offences against the laws of a State, the member may institute and carry on, in accordance with the terms of the appointment, prosecutions for such offences" and, pursuant to s 6(1)(n), " ...to do anything incidental or conducive to the performance of any of the functions referred to in paragraphs (a) to (mb) and in subs (2)". Relying upon the Instruments in Ex 16 the CDPP submits that "the proceedings have been carried on by the staff members of the [CDPP] on behalf of the [Commonwealth Director].": see MFI "F".
4. The accused responds that the function in ss 6(1)(m) and 17 to "institute and carry on" is conjunctive and as the CDPP has not instituted the proceedings for the State offences it does not have legislative authority to appear for the NSWDPP.
5. Alternatively, the CDPP also relies upon the incidental power in s 6(1)(n) of the CDPP Act, cl 3 of the Director of Public Prosecutions Regulations 1984 (Cth) ("the Regulation") and the purported authorisation by the NSWDPP in the letter of 1 May 2014 (part Ex 16) for the CDPP to "appear as my agent with respect to the [NSW] charges, being sequences 2-4, and to continue to carry on the committal proceedings with respect to those charges."

The State Charges were not "Taken Over"

1. The CDPP's argument that it did not in fact "take over" the State charges is accepted. In the letter of 24 January 2013, the CDPP in consenting to the NSWDPP's request stated, in part, "…and your request that this Office take over the prosecution of the State offences…it has been decided to accede to your request." The NSWDPP's request of 16 May 2012 was in fact "to have conduct…..to your Office conducting…I consent to your Office conducting.." Viewed in the context of the NSWDPP's request, nowhere is it said that the CDPP "take over" the State charges; what the CDPP did was to "…accede to your request" which was to conduct the proceedings for the State charges, not "take over."

The CDPP had the Power to "Carry On" the State Charges under ss 6(1)(m) and 17 of the CDPP Act

1. As the CDPP is entirely a creature of statute he may only exercise such powers as are conferred upon him by his enabling statute or by any other statute or legislative instrument: see Byrnes v R [1999] HCA 38; 199 CLR 1 where at [86] Kirby J said: "The [CDPP] holds an office created by legislation. He has no more powers than those enjoyed under: (1) the [CDPP Act]; (2) any other law of the Commonwealth conferring powers upon him; (3) any law of a state or territory which with the authority of the Federal Parliament confers such powers, or (4) the incidents and implications necessarily read into the foregoing, express grants of power. In this respect, the [CDPP] does not succeed to those prerogative powers of the Crown which have devolved by history and law to an Attorney-General. His powers must be expressly stated, or necessarily implied, in a valid grant of power given by, or under the authority of, the Parliament." [Footnotes omitted]
2. The competency of the CDPP to carry on these proceedings does raise a constitutional issue if the DPP Act sought to confer a power which was not enjoyed under the CDPP Act: Bond v R [2000] HCA 13; 201 CLR 213 at [29] and [31]. In Bond v R (supra), the High Court unanimously said of s 17 of the CDPP Act at [29], that: "The power which a State may give to a staff member of the [CDPP] in accordance with s 17 is limited to a power to institute and carry on a prosecution for offences against a law of the State. A State law which purports to give wider powers is, to that extent, inconsistent with a law of the Commonwealth (s 17 of the [CDPP Act]), and invalid. Members of the staff of the [CDPP] had no power to institute an appeal against the sentence imposed on the appellant."
3. The words of Justice Fullagar in Australian Communist Party v The Commonwealth [1951] HCA 5; 83 CLR 1 in a constitutional context are apt in the circumstances of this matter. At 258, His Honour stated, "[i]t may be thought that herein lies an exception to an elementary rule of constitutional law which has been expressed metaphorically by saying that a stream cannot rise higher than its source." Either the right to "carry on" the proceedings for State offences resides within ss 6(1)(m) or 17, or it does not otherwise.
4. The Courts have tended to adopt a literal approach in construing the CDPP's powers (Gillis v Director of Public Prosecutions (Cth) (1993) 43 FCR 458) as to the power to prosecute on indictment for a Commonwealth offence where the accused had been committed for trial on a State offence but no Commonwealth offence; Byrnes v R (supra) at [52] and [88]; Bond v R (supra) at [29] as to the rights of appeal where the Director otherwise had the authority to prosecute the offences.
5. For the reasons that follow, and not without some significant reservations the Court concludes that it should follow R v Dexter [2002] QCA 540; 136 A Crim R 276 which held that s 6(1)(m) of the CDPP Act does confer power upon the CDPP to carry on proceedings for State charges instituted (here "taken over" by the NSWDPP but to the same effect: see Price v Ferris (supra)) by a State officer rather than the CDPP.
6. In R v Dexter (supra) the accused had been committed to stand trial for both Commonwealth and State offences. The Deputy Director of Public Prosecutions for QLD subsequently gave consent for an ex officio indictment to be presented for State offences only. An indictment was subsequently signed and presented by Allan MacSporran, a private practice barrister who held a commission on behalf of the Attorney-General for the State of QLD and was authorised to sign and present indictments on behalf of the Crown. The CDPP funded and instructed Allan MacSporran's appearance at the trial. On an appeal challenging the validity of the indictment, McMurdo P held at [29]: "As the CDPP had the consent of the Commonwealth Attorney-General to hold an appointment to prosecute offences against the laws of [QLD] under s 6(1)(m) CDPP Act (and held a commission to prosecute under s 560(2) Criminal Code (QLD)) the CDPP's functions included "to institute and carry on ... prosecutions" for [QLD]. The term "carry on" is not defined in the CDPP Act. The meaning of the phrase in the Macquarie Dictionary is "to manage; conduct;...". Although the CDPP did not institute this prosecution on indictment he did, with the consent of the [QLD DPP], carry on the prosecution in preparing the case and briefing and instructing Mr MacSporran. [Section] 6(1)(m) [of the] CDPP Act does not limit the function of the CDPP to the conduct of [QLD] prosecutions which he has also personally instituted (that is, where he has signed and presented the indictment); it also includes the carrying on of prosecutions, which incorporates the preparation and management of a prosecution case." [Footnotes omitted] Davies JA dealt with the challenge without needing to consider whether the CDPP had lawful authority to carry on the prosecution as it was irrelevant, simply holding at [62]: "As appears from what I have said so far, the indictment was signed and presented by Mr. MacSporran, a person appointed by the Governor-in-Council to sign, present and prosecute indictments charging offences under the Criminal Code. There is nothing on its face which would lead one to think that it was presented by the...the Commonwealth Director...or by Mr. MacSporran as the servant or agent of the Commonwealth Director." Jerrard JA agreed with the orders proposed by both McMurdo P and Davies JA , essentially that Allan McSporran did have the authority to indict the appellant, that the CDPP had not in fact done so and therefore the lawful authority of the CDPP to assist Allan McSporran was irrelevant. However, in relation to McMurdo P's reasons about the CDPP's right to "carry on" the trial proceeding, he said at [89]: "In her learned judgment, the President does consider separately and in detail the merits of the appellant's complaint that the CDPP had no lawful authority to prosecute him. The President holds that the CDPP certainly conducted (para 25), or carried on (para 29), the appellant's prosecution by reason of preparing the case, briefing and instructing Mr. MacSporran and the like. I respectfully disagree with that conclusion, but respectfully agree with the President's carefully expressed reasons for holding that if the CDPP did conduct or carry on the appellant's prosecution, he did not do so unlawfully. There is nothing I can usefully add to the President's analysis of each of the appellant's separate arguments on that matter."

Should the Court follow R v Dexter?

1. Both parties submit that the reasons in R v Dexter (supra) are obiter dicta.
2. The accused submits that only McMurdo P determined that the words in s 6(1)(m) (a fortiori s 17) of the CDPP Act are disjunctive, and that determination and reasons are not binding on this Court. The accused accepts that while the President's reasons are persuasive, this matter is distinguishable as it involves the CDPP "taking over" the State CANs which was not considered in R v Dexter (supra). The accused submits (and which the Court accepts the force of; see below), that the President considered the power to "carry on" in s 6(1)(m) in isolation and not from the CDPP Act as a whole. In any event the accused submits that Jerrard JA expressly disagreed with McMurdo P. The accused argues that if the CDPP Act does permit the CDPP to carry on the proceedings, then it leaves the CDPP power to "take over" proceedings with no work to do, as to "carry on" the proceedings is a de facto take over. On that basis, the conclusion can only be that the words are to be read conjunctively.
3. The CDPP responds that the reasons in R v Dexter are highly persuasive and that McMurdo P explicitly held that the words in s 6(1)(m) of the CDPP Act, "institute and carry on", are disjunctive, that is, that they are separate functions. The CDPP responds that both Davies and Jerrard JJA implicitly recognized that s 6(1)(m) did extend to permitting the CDPP to carry on the proceedings instituted by Allan McSporran and, contrary to the accused's submission, that Jerrard JA did in fact agree with McMurdo P's disjunctive interpretation. The CDPP further submits that additional support for McMurdo P's express comments and Jerram JA's adoption is that the High Court subsequently refused the appellant special leave to appeal. The CDPP has provided a transcript of the special leave hearing and accepts that part of the argument advanced (and rejected) was that s 6(1)(m) and the CDPP Act as a whole did not contain "a mandate to carry on a State prosecution": [2004] HCA Trans- 229 per Brett Walker SC for the appellant.
4. This Court considers that McMurdo P and Jerrard JA, in part, did construe that s 6(1)(m) of the CDPP Act is to be read disjunctively. While Jerrard JA disagreed that the CDPP was carrying on the prosecution (implicitly as a matter of fact because it was Allan McSporran doing so) nevertheless agreed with McMurdo P otherwise that s 6(1)(m) does enable the CDPP to carry on proceedings for State offences not instituted by the CDPP. Given the nature of the challenge in R v Dexter (supra) it may be said that the reasons of McMurdo P (with the agreement of Jerram JA in part) are in fact ratio decidendi as that is what the President did determine.
5. The doctrine or principle of precedent (more properly stated as "stare rationibus decidendi") requires courts to apply the legal principles decided by higher superior courts in the same appellate hierarchy: R v XY [2013] NSWCCA 121; 84 NSWLR 363 at [30]. As the QLD Court of Appeal is not in the appellate hierarchy of the Local Court of NSW the ratio decidendi in R v Dexter (supra) (especially McMurdo P at [29] with Jerrard JA agreeing) is not strictly binding on this Court.
6. However, the High Court has emphasised in a number of decisions that it is the obligation of Australian courts not to depart from an interpretation placed on uniformly or similarly worded legislation unless convinced that that interpretation is plainly wrong (and even more so regarding Commonwealth legislation): Wells v Commonwealth [2014] NSWSC 148, citing at [49] Farah Constructions v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 90, in which Gleeson CJ, Gummow, Callinan, Heydon & Crennan JJ said at [135]: "Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law. There has already been an example of a single judge feeling obliged to follow the Court of Appeal despite counsel's submission that he was obliged not to do so." In Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485, in considering the construction of uniform national legislation, the High Court said at 492: "Although the considerations applying are somewhat different from those applying in the case of Commonwealth legislation, uniformity of decision in the interpretation of uniform national legislation such as the Law is a sufficiently important consideration to require that an intermediate appellate court - and all the more so a single judge - should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong." [Emphasis added.]
7. As ss 6(1)(m) and 17 of the CDPP Act do not differentiate between proceedings on indictment, committal proceedings or summary prosecutions there is no enabling power, procedural or other basis to distinguish the circumstances in R v Dexter (supra) from the present. In both cases the proceedings are either instituted (Allan McSporran under his Commission from the State and by the presentment of the indictment signed by him) or here "taken over" (by the NSWDPP) by State officers exercising powers and responsibilities under State laws. The CDPP in both cases is doing the same thing, namely carrying on the prosecution by instructing Mr Flood of counsel by a member of the CDPP staff under ss 15(1)(d) and (e) of the CDPP Act. In both cases (here the Ex 16 Consent) the CDPP held the relevant statutory consent of the Commonwealth Attorney-General as well as the practical consent of the NSWDPP.
8. Strictly speaking s 6(1)(m) of the CDPP Act does not require the consent of the State nor is there anything in the DPP Act that requires that consent to be given (even if it validly could). However, as the NSWDPP was the prosecutor (in the sense of being a party) and the CDPP had no power to take over the committal proceedings for the State charges, the NSWDPP's consent was effectively required to "carry on" the proceedings.
9. While R v Dexter (supra) may be distinguished on the basis that Allan McSporran did in fact appear during the trial proceedings while here the NSWDPP (or a State representative on his behalf) did not appear at all, that is not a distinction of any materiality given the ratio of R v Dexter (supra). If s 6(1)(m) (and a fortiori s 17) of the CDPP Act enables the CDPP to carry on proceedings for State offences not instituted by the CDPP, then it should not matter whether or not there is a State representative in court either appearing or instructing, as in this case, Mr Flood.
10. Notwithstanding the misgivings of this Court (see below) as to the correctness of R v Dexter (supra) it cannot conclude that it is plainly wrong and should not be followed. That the High Court was not prepared to grant special leave is a further reason, although it could not be said that the High Court agreed with all that was said in R v Dexter (supra), given that Davies and Jerrard JJA both held that it was Allan McSporran and not the CDPP who was prosecuting the appellant.

The Specific Functions and Powers of the CDPP Act to "Carry On" Proceedings - The Misgivings

1. Of consequence to this Court is that in R v Dexter (supra) there was no textual analysis of the CDPP Act as whole, and more particularly ss 6 and 9 which sets outs the functions and powers of the CDPP, to glean the nature of the meaning of the words "institute and carry on".
2. Section 6(1)(m) of the CDPP Act provides: "6 Functions of the Director (1) The functions of the Director are: ... (m) where the Director, with the consent of the Attorney-General, holds an appointment to prosecute offences against the laws of a State-to institute and carry on, in accordance with the terms of the appointment, prosecutions for such offences" Section 17 provides: "17 States may give members of staff of Office prosecution and appeal functions relating to State offences (1) Where a member of the staff of the Office, with the consent of the Attorney-General, holds an appointment to prosecute offences against the laws of a State, the member may institute and carry on, in accordance with the terms of the appointment, prosecutions for such offences. (2) If a member of the staff of the Office is authorised by or under a law of a State to institute and carry on appeals arising out of prosecutions of offences against the laws of the State, being prosecutions by the Director as mentioned in paragraph 6(1)(m) or by members of the staff of the Office as mentioned in subsection (1) of this section, the first-mentioned staff member may institute and carry on such appeals in accordance with requirements of or under that law."
3. The function and power of the CDPP to "carry on" proceedings, express or implied must be found in the text of the CDPP Act as it is entirely a creature of statute: Byrnes v R (supra) and Bond v R (supra). Presently, the power to "carry on" the committal proceedings for the State firearms offences must reside in either the express power under ss 6(1)(m) or 17 the incidental power under s 6(1)(n) attaching to s 6(1)(m). However, the interpretation of those two powers is not to be considered in a vacuum but rather from the text of the CDPP Act as a whole.
4. In so far as the CDPP seems to rely upon the delegations issued by the NSWDPP those delegations must be consistent with ss 6(1)(m) or 17 and not otherwise. As statutory instruments, if they purport to confer greater functions or powers than those enjoyed under the CDPP Act, then those delegations would be invalid: Bond v R (supra) at [29].
5. In Lacey v Attorney General (Qld) [2011] HCA 10; 242 CLR 573 at [43] - [44], the High court said of the interpretative content of a statutory provision: "The approach to construction 43. The objective of statutory construction was defined in Project Blue Sky Inc v Australian Broadcasting Authority as giving to the words of a statutory provision the meaning which the legislature is taken to have intended them to have. An example of a canon of construction directed to that objective and given in Project Blue Sky is "the presumption that, in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms or immunities". That is frequently called the principle of legality. The legislative intention there referred to is not an objective collective mental state. Such a state is a fiction which serves no useful purpose. Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts. As this Court said recently in Zheng v Cai: "It has been said that to attribute an intention to the legislature is to apply something of a fiction. However, what is involved here is not the attribution of a collective mental state to legislators. That would be a misleading use of metaphor. Rather, judicial findings as to legislative intention are an expression of the constitutional relationship between the arms of government with respect to the making, interpretation and application of laws. As explained in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs, the preferred construction by the court of the statute in question is reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy." 44. The application of the rules will properly involve the identification of a statutory purpose, which may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction." [Footnotes omitted.]
6. On a close scrutiny of the CDPP Act it is readily apparent that while it confers very wide ranging powers each of those powers is circumscribed by limited circumstances by and in which they may be exercised. In each case the specific power to only "carry on" proceedings is limited to a strictly Commonwealth offence or Commonwealth proceeding. In some cases the power is enlarged to include "whether or not instituted by the Director". For instance: 1. Section 6(1)(b) "to carry on" prosecutions on indictment for Commonwealth offences (save for some exceptions) "whether or not instituted by the Director". 2. Section 6(1)(baa) at the request of the Attorney-General "to carry on" proceedings on indictment instituted by the Attorney-General. 3. Section 6(1)(e) "to carry on" commitment proceedings and summary proceedings for Commonwealth offences "whether or not instituted by the Director". 4. Section 6(1)(fa)(i) and (ii) in respect of "relevant matters" to take civil proceedings "on behalf of and in the name of the Commonwealth and authorities of the Commonwealth" or "to co-ordinate or supervise" those proceedings. The latter is akin to carrying on those proceedings. 5. Section 6(1)(g) in respect of where there is an instrument by the Attorney-General specifying a class of matters under ss 6(3) to 6(1)(g)(i) "to institute proceedings"; or (it follows from the disjunctive at the end of (ii) but also s 6(6) "the institution or carrying on" of those proceedings) to (ii) "to carry on proceedings" (whether or not instituted by the Director); "or" (iii) "to co-ordinate or supervise the institution or carrying on of proceedings" for the recovery of pecuniary penalties under the law of the Commonwealth. 6. Section 6(1)(h) in respect of where there is an instrument by the Attorney-General specifying "relevant matters" under s 6(3) to take civil proceedings "on behalf of and in the name of the Commonwealth and authorities of the Commonwealth" or "to co-ordinate or supervise" those proceedings. The latter is akin to carrying on those proceedings. 7. Section 6(1)(ma) where the Director has the consent of the Attorney-General "to institute and carry on" appeals for State offences prosecuted by the Director under s 6(1)(m) of ODPP members under s 17(1). 8. Section 6(1)(mb) for the purpose of enforcing orders under Chapter 2 of the Proceeds of Crime Act 2002 to (i) "to institute proceedings"; "or" (ii) "to carry on proceedings" (whether or not instituted by the Director); "or" "(iii) "to co-ordinate or supervise the institution or carrying on of proceedings". 9. Section 6(5) where the Director is authorised to consent to prosecutions against the laws of the Commonwealth and consents to a prosecution the prosecution may be "instituted and carried on without the consent of any person."
7. It is instructive to note that the functions to "institute" indictable, commital or summary proceedings or prosecutions in ss 6(1)(a), (c) and (e) of the CDPP Act are further enlarged by a separate and distinct function to "carry on" on those very proceedings or prosecutions "whether or not instituted by the Director". Similar observations may also be made of the functions referred to in s 6(1)(baa) and (ba), those concerning civil and pecuniary order proceedings in s 6(1)(g) and (mb)(ii) as well as those powers to "co-ordinate or supervise" proceedings under s 6(1)(fa)(ii), (g)(iii), (h)(ii) and (mb)(iii). No specific separate and additional power to "carry on" a prosecution under s 6(1)(m) (or the related ODPP member power under s 17) or an appeal under s 6(1)(ma) is made.
8. It is striking that for Commonwealth prosecutions and civil proceedings there is a specific power to do so but for State offences and State appeals there is no such express power. The canon of statutory construction expressed in the maxim expressio unius est exclusion alterus (the express reference to one matter indicates that other matters are excluded) potentially has some force for the function where and when the CDPP may "carry on" a proceeding simpliciter: see generally Emeritus Professor Dennis C Pearce AO, FAAL and Adjunct Professor Robert Geddes, Statutory Interpretation in Australia, (8th ed 2014) at 4.33 - 4.35. While the High Court has repeatedly said that the maxim "must always be applied with care" (Houssein v Dept of Industrial Relations and Technology [1982] HCA 2; 148 CLR 88 at 94) the maxim here appears to have much force in the present statutory text given the selective conferral of the function to "carry on" proceedings instituted by others but not for State proceedings and State appeals.
9. For instance, where the Director has not taken over committal or summary proceedings for Commonwealth offences but has been "carrying on" those proceedings the Director is empowered under s 9(5) of the CDPP Act to decline to carry on those proceedings. Again, similar observations may be made concerning the CDPP's appeal powers under ss 9(8A) and (8B) for Commonwealth summary offences, whether or not carried on by the CDPP. However, it is telling that there is no such power in the CDPP Act (it can only exist there) where the Director or CDPP staff member are only carrying on the State offence proceedings as he asserts. Surely, it could not have been the intention of the Commonwealth Parliament that the CDPP would, in respect of State offence proceedings, whether or not instituted by the NSWDPP, be no more than a servant of the prosecutor party to the proceedings. As ss 6(1)(m) and 17 refer to State offences only and with no limitation as to whom instituted those proceedings (nor do the Commonwealth-Attorney's Consent in Ex 16 contain any limitation, as all they say is "CONSENT….to prosecute offences against the laws of each and every State.") the CDPP could in fact carry on proceedings instituted by a private person. It is, of course not unknown for private persons to institute committal proceedings for trial.
10. There are real significant public policy considerations that suggest that that was not the intention of the Commonwealth Parliament and that the s 6(1)(m) (and s 17) power should be read in the conjunctive to make it clear that the sole responsibility and authority for the prosecution of the State offence (and for that matter the s 6(1)(ma) appeal power) should solely rest with a single Director to the exclusion of all others, including the NSWDPP. That is not to say that the Directors would not consult each other. However, the manifest purpose for the establishment of DPP, Commonwealth or State, was, to enshrine independence in the decision making process of the criminal justice process: see Price v Ferris (supra). In Price v Ferris (supra) the NSWDPP had taken over proceedings in the Local Court which had been laid by information by an Inspector of Police. The magistrate dismissed the information. An appeal was then lodged by Inspector Price. In dismissing the appeal, because the appeal was lodged under a mistake of identity and not name, Kirby P. had this to say at 708G - 709A: "The appearance of total impartiality in prosecutorial decisions is far from theoretical. It is designed to achieve the very practical object of faith in the manifest integrity of the process. This is not so much to exclude people like Inspector Price from having a part after the DPP has "taken over" his proceedings. It is to uphold the office of the DPP and to assert, after the "take over", that the decisions are manifestly the DPP's and the DPP's alone." Meagher JA identified the public policy considerations that a construction of the NSWDPP "take over" provision was to extinguish the rights of the earlier informant when he said at 714C - E: "For Kirby P, to "take over" a matter involves not only prosecuting the matter but doing so in one's own name; for Priestley JA it involves no more than, as it were, an equitable assignment of the matter, so that the matter remains in the name of the original informant but is conducted by the Director. The problem is to determine which of these two views parliament intended, a more than usually esoteric task in cases such as the present where one can be reasonably certain that the problem would not have occurred to parliament. However, despite the logical force of Priestley JA's analysis, I am inclined to think the learned President is correct. If Priestley JA's view were correct, after a "take over" had taken place the original informant might wish to take some course which was opposed by the Director, in which case the Director would presumably have to obtain an injunction against the informant, a procedural complexity which I do not think would have commended itself to our Patres Conscripts, had they thought about what they were doing. I therefore agree with Kirby P, and with McInerney J."
11. Of course, if the CDPP or s 17 member did in fact "institute" these proceedings, then as a party they would have the undoubted right to withdraw the CANs. That lends considerable support to a conjunctive interpretation. The conjunctive construction is further supported in the context of indictable trial proceedings as it is the signing, filing and presentment of the indictment that commences the proceedings: see R v Janceski [2005] NSWCCA 281; 223 ALR 580, following R v Nicolaidis (1994) 33 NSWLR 364 at 367. The words "carry on" then have some context in that the function in ss 6(1)(m) and 17 is not only to "institute" proceedings by the finding, signing, filing and presentment of the indictment (both functions delegated by the NSWDPP in the Instrument of Delegation and Order) but also to "carry on" the proceedings and conduct the prosecution. As ss 6(1)(m) and 17 do not differentiate between summary, indictable offences dealt with summarily or proceedings on indictment there is basis to distinguish the nature of the proceedings.
12. It is also instructive that the appeal function for State offences in s 6(1)(ma) was inserted to overcome the High Court decisions in Byrnes v R (supra) and Bond v R (supra) where there had been a lack of power to lodge an appeal where the CDPP had been the prosecutor party. The function to "institute and carry on" is in identical terms to ss 6(1)(m) and 17. It would be curious to say the least that the Commonwealth Parliament in intending to cure the Byrnes v R (supra) and Bond v R (supra) deficiency was in fact at the same time intending to add a function to "carry on" an appeal, where the substantive proceedings had not been "instituted" by the CDPP.
13. Finally the CDPP has submitted that a disjunctive interpretation favours the notion of co-operative federalism -it avoids unnecessary duplication and use of public resources; oppressive prosecution by separate proceedings or double punishment and minimises the possibility of inconsistent verdicts. The Court unreservedly accepts that submission but that notion cannot confer an absent function or power. The High Court decisions in Byrnes v R (supra) and Bond v R (supra) easily dispose of that argument.
14. In any event those difficulties and the CDPP's right to prosecute these offences could easily be resolved by either the CDPP or more likely an authorised member of the CDPP staff filing fresh CAN's in identical terms. The earlier CANs could then have been withdrawn. That would be an administrative step easily accomplished. The Commonwealth Director or CDPP member would then have the right to carry on the proceedings as he or the member would have instituted the proceedings within the meaning of ss 6(1)(m) or 17 of the CDPP Act. Any earlier brief service orders would then satisfy any requirements for the fresh CANs.

The Incidental Power in s 6(1)(n), Clause 3 and the "Agency"

The incidental power in s 6(1)(n) of the CDPP Act

1. Section 6(1)(n) of the CDPP Act provides: "6 Functions of Director (1) The functions of the Director are: .... (n) to do anything incidental or conducive to the performance of any of the functions referred to in paragraphs (a) to (mb) and in subsection (2)."
2. In Grofam Pty Ltd and Others v Australia and New Zealand Banking Group Ltd and Others (1993) 117 ALR 669 at 673 - 674, Northrop, Ryan and Beazley JJ said of the incidental power in the CDPP Act: "The fact that a provision may, upon its proper construction, be categorised as a power notwithstanding that it is not labelled as such, was recognised in Edelsten v Health Insurance Commission (1990) 27 FCR 56 at 62-3; 96 ALR 673 at 677 where Northrop and Lockhart JJ described the distinction between functions and powers in these terms: The distinction between the functions and powers of an administrative body is between functions or purposes or activities of an administrative body on the one hand and the powers conferred upon it to perform or execute those functions, purposes or activities on the other. This is the primary sense in which the words are understood. The types of statutory contexts in which the expressions functions'' and powers'' of such bodies appear differ considerably. Sometimes the two expressions are treated interchangeably or with blurred dividing lines; whilst some statutory definitions of functions'' provide that functions includes powers and duties''. There is force in the respondents' submission as to the categorisation of s 6(1)(n). In our opinion the incidental'' provision in s 6(1)(n) is not a function'' in the primary sense in which that word is used, despite the apparent separation between functions'' and powers'' in ss 6 and 9 of the Act. If a statutory provision specifies the administrative function or purpose or activity to be undertaken or performed, it is likely, if not essential, for that function to have an independent operation, even though it may be related to other functions. Section 6(1)(n) could not have any independent operation of that kind. It is purely incidental. Further, its language is the language of permission or of enabling things to be done or activities to be performed. In other words, it is the language of a power and not of a function." At 674 the Court continued: "In Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; 24 ALR 513 Mason J, in dealing with the operation of general and special powers, stated at CLR 678; ALR 518: It is accepted that when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power. In Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 Gavan Duffy CJ and Dixon J said: ... When the legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.'' This principle is, however, a principle of statutory construction which must at all times be applied so as to give effect to the intention of the legislature. In Refrigerated Express Lines (A'asia) Pty Ltd v Australian Meat and Live-Stock Corp (1980) 29 ALR 333, Deane J said at 347: As a matter of general construction, where there is repugnancy between the general provision of a statute and provisions dealing with a particular subject matter, the latter must prevail and, to the extent of any such repugnancy, the general provisions will be inapplicable to the subject matter of the special provisions. The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be taken to be operative...'': per Romilly MR, Pretty v Solly(1859) 26 Beav 606 at 610 ; 53 ER 1032 at 1034. Repugnancy can be present in cases where there is no direct contradiction between the relevant legislative provisions. It is present where it appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter. A more fundamental example of such repugnancy is where the particular provisions prescribe or encourage conduct which the general provisions would render prima facie, though not irremediably, unlawful or where the particular provisions assume to be lawful conduct which the general provisions would render prima facie unlawful. I have already indicated my view that the latter, more fundamental, example of repugnancy is present in the instant matter. I consider that the former example of repugnancy is likewise present. See also Saraswati v R (1991) 172 CLR 1 at 22; 100 ALR 193."
3. Given the express conferral of powers to "carry on" proceedings which the Court has identified the incidental power could not supplant the right to carry on the proceedings for the State offences. Either, that function falls within s 17 (or s 6(1)(m)) of the CDPP Act, or not at all. That is not to say that the incidental power serves no function in the current circumstances. For instance, it would enable the CDPP to appear on behalf of the NSWDPP in the early procedural appearances as those charges were inextricably linked with the Commonwealth importation offence which the CDPP had undoubted power to carry on while it was determined who would ultimately prosecute the CANs, Commonwealth or State.

Clause 3 of the Director of Public Prosecutions Regulations

1. Clause 3 of the Director of Public Prosecutions Regulations provides, in part: "3 Other functions of the Director of Public Prosecutions (1) For the purposes of paragraph 6(2)(b) of the Act, the other functions of the Director are: (a) to carry on proceedings instituted by: (i) an officer of, or a person employed by, the Commonwealth or a body established by an Act or a law of a Territory; or (ii) a person holding office under an Act or a law of a Territory; or (iia) a person who performs services for the Australian Crime Commission under an arrangement under subsection 58 (1) of the Australian Crime Commission Act 2002; or (iib) the Australian Securities Commission; being proceedings instituted for: (iii) the commitment of persons for trial in respect of indictable offences against the laws of a State; or (iv) the summary conviction of persons in respect of offences against the laws of a State ... "
2. Plainly, the contention advanced by the NSWDPP in his letter of 1 May 2014 cannot be accepted as the committal proceedings for the State offences were not instituted (or deemed as taken over) by the class of persons enumerated in Regulation 3.

The Agency

1. Again, the request by the NSWDPP for the CDPP to appear on its behalf as his agent must have an enabling statutory basis in the CDPP Act: Byrnes v R (supra) and Bond v R (supra). If the right to appear and conduct or carry on the hearing (rather than the early interlocutory mentions) of the State offences cannot be found in ss 6(1)(m), (n) or 17 of the CDPP Act then it cannot be given to the CDPP by the NSWDPP by some informal arrangement. This submission is also not accepted.

Conclusion

1. For the foregoing reasons the CDPP did have the lawful authority to "carry on" the committal proceedings for the State firearm offences and in doing so to appear for the NSWDPP. Consequently, the NSWDPP did not fail to appear at the committal hearing.
2. The Court will separately consider and determine the accused's further contentions. LCM Favretto Downing Centre Local Court 16 December 2014 ******** 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 August 2015