El-Ali v Commonwealth Director of Public Prosecutions

Background

1. On 13 March 2012 the applicant was arrested by officers of the NSW Police Force, and charged with a series of serious firearms offences, one of which was an offence against a law of the Commonwealth, and others which were offences against laws of NSW ("the State charges"). On 24 January 2013, by arrangement between the Commonwealth Director of Public Prosecutions ("the CDPP") and the Director of Public Prosecutions for NSW ("the NSWDPP"), the CDPP assumed the role of prosecuting all charges. On 9 December 2013 committal proceedings commenced in the Local Court. On 13 December 2013 the evidence in the proceedings concluded, and the proceedings were adjourned to enable the parties to file and serve written submissions. On 28 February 2014, the applicant entered a plea of guilty to the Commonwealth charge; the parties made oral submissions with respect to the State charges. The applicant then raised an issue as to the authority of the CDPP to prosecute the State charges. On 16 December 2014 Magistrate Favretto found that the CDPP had lawful authority to carry on the prosecution of the State charges.
2. By Summons filed in the Supreme Court on 13 January 2015 the applicant sought various orders. One order sought was for leave, pursuant to s 53(3)(a) of the Crimes (Appeal and Review) Act 2001 (NSW) ("the Appeal and Review Act"), to appeal against the determination of the magistrate that the CDPP had the authority to prosecute the State charges. Another order sought was an order in the nature of certiorari, pursuant to s 69 of the Supreme Court Act 1970 (NSW), quashing that determination.
3. On 3 February 2015, on the applicant's application, Button J granted a stay of the committal proceedings, finding that the applicant had a "reasonably arguable" case with respect to the issues raised in the Summons of 13 January.
4. On 5 June 2015 Bellew J dismissed that Summons. He held that the determination of the magistrate was not an "order" for the purposes of s 53(3)(a) of the Appeal and Review Act which provides: "(3) Any person against whom: (a) an order has been made by a Magistrate in relation to the person in any committal proceedings … … may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court." He further held that the applicant had not established relevant error for the purposes of s 69 of the Supreme Court Act 1970 (NSW). In those circumstances, it was unnecessary that he determine the authority of the CDPP to prosecute the State charges.