El-Ali v Commonwealth Director of Public Prosecutions and the Local Court of NSW

Supreme Court of NSW|2015-03-13|Before: Bellew J, Mr P, Button J

INTRODUCTION

By summons filed on 13 January 2015 the plaintiff seeks the following orders: 1. An order that the hearing of this application be expedited. 2. An order that the proceedings in matter no. 2012/81506 pending in the Local Court of New South Wales be stayed until determination of this application. 3. An order pursuant to s. 53(3)(b) of the Crimes (Appeal and Review) Act 2001 that the plaintiff be granted leave to appeal the decision of Magistrate Favretto, delivered on 16 December 2014 in proceedings 2012/81506, in which his Honour refused to discharge the plaintiff in accordance with s. 61(1)(a) of the Criminal Procedure Act 1986; 4. In the alternative to 3, an order that the record of the Local Court proceedings in matter number 2012/1506 be removed to this Court pursuant to s. 69 of the Supreme Court Act 1970; 5. An order that the order made by Magistrate Favretto on 16 December 2014 be quashed; 6. An order that the proceedings be remitted to the Local Court to be heard and determined according to law; and 7. Costs.
On 3 February 2015 Button J granted an order to the effect of that sought in paragraph (2) of the summons. It should also be noted that the reference in paragraph (3) of the summons to s. 53(3)(b) of the Crimes Appeal and Review Act 2001 is obviously an error. That section refers to interlocutory orders made by a Magistrate in summary proceedings. The plaintiff in the present case seeks relief in respect of what is said to be an order made by a Magistrate in committal proceedings. Consistent with the submissions made to me in the course of the hearing, the reference is paragraph (3) of the summons should be read as a reference to s. 53(3)(a).
The only active defendant at the hearing before me was the first defendant, the Commonwealth Director of Public Prosecutions ("CDPP"). The second defendant (the Local Court of NSW) filed a submitting appearance. A court book containing all relevant evidentiary material was admitted as Exhibit A.

THE CHARGES AGAINST THE PLAINTIFF

The plaintiff has been charged with an offence ("the Commonwealth offence") of conspiring to import tier two goods contrary to s. 11.5 of the Criminal Code 1995 (Cth) ("the Code") and s. 233BAB(5) of the Customs Act 1901 (Cth).
He has also been charged with the following ("the State offences"): 1. conspiring to possess unregistered firearms contrary to s. 51D(2) of the Firearms Act 1996 (NSW); 2. unlawfully selling firearms contrary to s. 51B(1) of the Firearms Act 1996 (NSW); and 3. participating in a criminal group contrary to s. 93T(1) of the Crimes Act 1900 (NSW).
The entirety of the charges against the plaintiff involve the alleged importation, possession and supply of 140 Glock pistols. Two other persons, Ahmed Karnib ("Karnib") and Andrew Botros ("Botros") have also been charged with offences arising out of the same circumstances. In short, the case against the plaintiff is that he arranged for the purchase, delivery and importation into Australia of firearms, firearm parts and firearm magazines. On the Crown case, there were 21 successful importations into Australia. However, only a proportion of the pistols which are said to have been imported have been recovered.

THE PROCEDURAL HISTORY

In light of the issues raised by the plaintiff, it is necessary for me to briefly recount the procedural history of the proceedings in the Local Court.
The charges against the plaintiff came before the Local Court on various occasions between 14 March 2012 and 5 February 2013, during which time they were progressively adjourned to allow the completion of service of the brief of evidence. On the majority of those occasions there were separate appearances on behalf of the CDPP (in respect of the Commonwealth offence) and the NSW Director of Public Prosecutions ("the NSWDPP") (in respect of the State offences).
On 5 February 2013 there was a single appearance by Mr Powell, solicitor, on behalf of the CDPP. On that occasion Mr Powell informed the court as follows: "The Commonwealth Director of Public Prosecutions had taken over the conduct of the prosecution of the existing State offences from the Office of the Director of Public Prosecutions for the State of New South Wales and the Commonwealth Director of Public Prosecutions has elected to prosecute the existing State offences on indictment."
The circumstances in which the CDPP came to take over the prosecution of the State offences emerge from correspondence between the CDPP and the NSWDPP. On 16 May 2012 Mr Pickering SC, the Deputy NSWDPP wrote to the then CDPP, Mr Craigie SC (as his Honour then was) in (inter alia) the following terms (CB 49-51): "The defendants, Khoder EL ALI, Ahmed KARNIB and Andrew BOTROS are each charged with the following offences: Intentionally import prohibited tier 2 goods: s. 233 BAB(5), Customs Act 1901 (Cth) (maximum penalty:10 years); possess more than 3 unregistered firearms: s. 51D(2), Firearms Act 1996 (NSW) (maximum penalty: 20 years; standard non-parole period 10 years). unlawfully selling firearms on an ongoing basis: s. 51B(1), Firearms Act 1996 (maximum penalty: 20 years; standard non-parole period 10 years). participate in a criminal group: s. 93T(1), Crimes Act 1900 (NSW) (maximum penalty: 5 years). … EL ALI is also charged with 15 offences of providing a false or misleading application under s. 70 of the Firearms Act 1996 (NSW), which carries a maximum penalty of 5 years imprisonment when the application does not relate to a prohibited firearm or pistol. Those charges are currently with police prosecutors and have been referred to my Office for consideration of election. They relate to allegations that EL ALI provided false information to the Firearms Registry in connection with applications for permits to acquire firearms. [REDACTED] For the following reasons, 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. [REDACTED] I would be grateful for your views on the proposed course at your earlier (sic) 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 1996 against EL ALI being dealt with on indictment."
By letter of 24 January 2013, the then Senior Assistant Director of the CDPP, Ms Ellen McKenzie, wrote to Mr Pickering SC in (inter alia) the following terms: "I write to inform you that, having completed a review of the brief of evidence, it has been decided to accede to your request. It is proposed now to seek advice from senior counsel as to the appropriate charges to be preferred against each accused. This office will be in further contact with you in due course in relation to any issues that arise in respect of the disposition or continuation of any State charges."

THE RELEVANT INSTRUMENTS OF APPOINTMENT

On 6 December 2012 the then Governor-General for the Commonwealth of Australia, Her Excellency the Honourable Dame Quentin Bryce, approved a recommendation made by the then Attorney-General for the Commonwealth of Australia, Ms Nicola Roxon MP, that Mr Robert Bromwich SC be appointed as the Commonwealth Director of Public Prosecutions for a period of 5 years commencing on 17 December 2012. The instrument of appointment was signed by the Governor-General on 6 December 2012.
On 2 January 2013, pursuant to the provisions of the Director of Public Prosecutions Act 1983 (Cth) ("the CDPP Act") the acting Attorney-General of the Commonwealth, Jason Clare, signed a consent in the following terms: "I, Jason Clare, acting Attorney-General of Australia, pursuant to s. 6(1)(m) of the Director of Public Prosecutions Act 1983 HEREBY CONSENT to ROBERT BROMWICH SC holding appointments to prosecute offences against the laws of each and every State."
On each of 6 February 2013, 12 June 2013 and 25 August 2014 Mr Lloyd Babb SC, the NSWDPP, signed separate instruments of delegation, the effect of each of which was to delegate, to nominated persons, certain of his functions and responsibilities. In the schedules accompanying each of those three instruments Mr Bromwich SC was one of the persons nominated. Each schedule was in (inter alia) the following terms: "I Lloyd Adam Babb SC, the Director of Public Prosecutions for the State of New South Wales hereby: … Delegate to the persons listed in the Schedule who have been approved by the Attorney General for the State of New South Wales, my functions and responsibilities; To institute and conduct committal proceedings for indictable offences, proceedings for summary offences in any court and summary proceedings for indictable offences that may be dealt with summarily in Local Courts; To find a bill of indictment in respect of an indictable offence in circumstances where the person concerned has been committed for trial for that indictable offence and to institute and conduct, on behalf of the Crown, the prosecution of such a person on that indictment for indictable offences in the District Court or the Supreme Court. … These delegations and orders are to apply during the term of the appointment of the persons named in the Schedule to the Office of the Commonwealth Director of Public Prosecutions or until earlier revocation.

THE COMMITTAL PROCEEDINGS

At all times after 5 February 2013 the CDPP appeared in the Local Court as prosecutor in respect of both the Commonwealth and State offences. Counsel briefed by the CDPP appeared at the committal proceedings which were governed by the provisions of the Criminal Procedure Act 1986 (NSW) ("CPA").
At the conclusion of the prosecution evidence in the committal proceedings the plaintiff pleaded guilty to the Commonwealth offence. Counsel for the plaintiff then submitted to the Magistrate that the State offences should be dismissed on the basis that the CDPP had no power to prosecute them. In written reasons delivered on 16 December 2014, the Magistrate rejected that submission. He found (inter alia) that the CDPP had the lawful authority to conduct the committal proceedings in respect of the State offences. Immediately following that decision, and without the committal proceedings actually concluding, the plaintiff filed the present summons seeking leave to appeal against the Magistrate's decision.

THE REASONS OF THE MAGISTRATE

The Magistrate (commencing at [1]) set out the background to the application made on behalf of the plaintiff: "[1] These are proceedings for the commitment for trial of the accused Khoder El Ali on a Commonwealth importation offence and a number of state firearm offences concerning the unlawful importation and sale of firearms and firearm parts (collectively "the firearms"). The Commonwealth Director of Public Prosecutions ("CDPP") prosecutes the Commonwealth offence in its own right and purportedly carries on the prosecution of the State offences on behalf of the New South Wales Director of Public Prosecutions ("NSWDPP"). [2] The accused has been charged along with two others, Ahmed Karnib and Andrew Botros. Generally, all three are charged with the importation, possession and subsequent supply of some one hundred and forty (140) Glock pistols in 2011 and 2012 (by the unlawful importation of the Glock's (sic) in parts) through the Sylvania Waters Post Office and adjacent business addresses. Both Ahmed Karnib and Andrew Botros took part in a contested committal with the calling of the witness Patrick Fuge (the seller and exporter of the Glock's and parts) from Germany under s. 91 of the Criminal Procedure Act 1986. The accused did not take part in the s. 91 hearing. Both Ahmed Karnib and Andrew Botros are currently before the District Court awaiting sentence. [3] The case against the accused Khoder El Ali is that he arranged for the purchase, delivery and ultimate importation into New South Wales, Australia of the firearms, firearm parts and firearm magazines. El Ali used various false identities for the unlawful importation from suppliers in Germany (19 importations via Fuge) and the USA (two importations) by having the firearms broken down into parts for export into Australia. In all twenty one (21) importations were successful into Australia totalling one hundred and fifty (150) Glock pistols. Only eight Glock pistols have been recovered to the Court's knowledge. One hundred and forty (140) Glock pistol magazines and eight (8) magazine speed loaders were seized on 10 February 2011 which then became the subject of a controlled delivery. Ahmed Karnib arranged for the transport of the firearms into Sydney and either took delivery and possession himself or arranged delivery and possession through Andrew Botros via the Sylvania Waters Post Office. [4] At the close of the CDPP's case the accused entered a plea of guilty to the Commonwealth importation offence. The Court notes that the entering of that plea of guilty will by itself, have the consequence of establishing some of the elements of the State Firearm offences; at least the possession of the firearms in New South Wales once the firearms came into Sydney and some were delivered to an address at Dulwich Hill but the majority were delivered at Sylvania Waters."
The Magistrate then said (at [5]-[6]): "[5] However, the accused submits that the State offences should be dismissed because the CDPP had no power to carry on the proceedings on behalf of the NSWDPP. As the latter did not appear at the hearing the accused must be discharged: see s. 61(1)(a) of the Criminal Procedure Act 1986, subject to the discretion in s. 6(1)(b) to adjourn the proceedings to allow the NSWDPP to appear. [6] Alternatively the accused submits that the State Court Attendances (sic) Notices ("CANs") should be quashed as either "embarrassing" as averred or that the elements of the offences are not proven. [7] The accused's latter submissions are to be considered and properly only determined at this stage under s. 62 of the Criminal Procedure Act 1986, namely the legal test "…Whether the prosecution evidence is capable of satisfying a jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence". That determination requires the court "not consider the probative value of the evidence as a whole, but only that evidence which, if believed and uncontradicted, could be accepted as proof of the Crown case…": R v Serratore (1999) 48 NSWLR 101 at 127. The CDPP's case is to be taken at its highest and there is still a case to answer even if the CDPP's evidence is tenuous, inherently weak or vague: DPP v Elskaf [2012] NSWSC 21 at [47]" (emphasis in original).
The Magistrate went on to consider the respective submissions of the parties before concluding (at [60]): "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."

RELIEF UNDER THE CRIMES (APPEAL AND REVIEW) ACT 2001

The legislation

The primary relief sought by the plaintiff is pursuant to s. 53(3)(a) of the Crimes (Appeal and Review) Act 2001 ("the Appeal and Review Act"). Section 53(3) is in the following terms: 53 Appeals requiring leave (1) … (2) … (3) Any person against whom: (a) an order has been made by a Magistrate in relation to the person in any committal proceedings, or (b) an interlocutory order has been made by the Local Court in relation to the person in summary 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. (4) …
A preliminary issue arises as to whether the Magistrate's conclusion that the CDPP had the power to prosecute the state offences constitutes an "order" for the purposes of s. 53(3)(a). If I come to the conclusion that it does not, it will be necessary for me to consider the alternative relief sought by the plaintiff pursuant to s. 69 of the Supreme Court Act 1970 ("the SCA").
Potentially relevant to the issue of whether the Magistrate made an order are the following provisions of the CPA which govern the conduct of committal proceedings: 61 Discharge of accused person if prosecutor not present for taking of evidence (1) If the prosecutor fails to appear on the day and at the time and place set for taking prosecution evidence in any committal proceedings, the Magistrate must: (a) discharge the accused person as to the offence the subject of the proceedings, or (b) if the Magistrate thinks it appropriate, adjourn the hearing to a specified time and place. (2) The adjournment must not exceed 8 days or such longer period as the accused person may consent to. (3) Subsection (2) does not apply if the accused person is refused bail and section 41 of the Bail Act 2013 (which provides for a maximum adjournment period) applies. 62 Prosecution evidence and initial determination (1) The Magistrate must take the prosecution evidence in accordance with Division 3 and must determine whether the prosecution evidence is capable of satisfying a jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence. (2) The Magistrate must discharge the accused person in relation to the offence if, in any committal proceedings, after all the prosecution evidence is taken and after considering all the evidence before the Magistrate, the Magistrate is not of the opinion that, having regard to all the evidence before the Magistrate, the evidence is capable of satisfying a reasonable jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence. 63 Where prosecution evidence sufficient to satisfy jury (1) If in any committal proceedings, after all the prosecution evidence is taken and after considering all the evidence before the Magistrate, the Magistrate is of the opinion that, having regard to all the evidence before the Magistrate, the evidence is capable of satisfying a reasonable jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence, the Magistrate must give the accused person an opportunity to answer the charge and a warning in the form prescribed by the rules. (2) The Magistrate must proceed to take any statement by or any evidence adduced by the accused person in accordance with Division 4. (3) If the accused person is not present, the Magistrate may make a decision under section 64 without complying with subsection (2). (4) If the accused person is a corporation and the corporation appears by representative, the representative may answer the charge on behalf of the corporation. 64 Decision about committal When all the prosecution evidence and any defence evidence have been taken in committal proceedings, the Magistrate must consider all the evidence and determine whether or not in his or her opinion, having regard to all the evidence before the Magistrate, there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence. 65 Committal (1) If the Magistrate is of the opinion that there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence, the Magistrate must commit the accused person for trial. (2) In the case of an accused person that is a corporation, the Magistrate may, if of that opinion, make an order authorising an indictment to be filed for the offence named in the order or for such other offence as the Attorney General or Director of Public Prosecutions considers proper. (3) The making of an order under subsection (2) is taken to be committal for trial. 66 Discharge If the Magistrate is not of the opinion that there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence, the Magistrate must immediately order the accused person to be discharged in relation to the offence.

Submissions of the plaintiff

Counsel for the plaintiff relied principally upon paragraphs [5] and [60] of the Magistrate's reasons (set out in [18] and [19] above) as constituting an "order" for the purposes of s. 53(3)(a).
It was submitted on behalf of the plaintiff that in considering whether the Magistrate had made an order, it was necessary to have regard to the effect of what the Magistrate did. In this respect, counsel for the plaintiff submitted that the Magistrate's conclusion had the "profound effect" of denying the plaintiff the benefit of being discharged at the conclusion of the committal proceedings. It was submitted that such effect supported the conclusion that the Magistrate had made an "order" within the meaning of s. 53(3)(a) of the Appeal and Review Act.
Counsel for the plaintiff further submitted that the Magistrate's decision was in the nature of a judicial act which determined an identifiable and separate part of the proceedings. It was submitted that in concluding as he did, the Magistrate had effectively determined that the committal proceedings were not liable to be dismissed, and that the CDPP had the power to conduct them In advancing these submissions counsel for the plaintiff took me to various authorities, some of which I have referred to below.

Submissions of the first defendant

Senior counsel for the first defendant submitted that what the Magistrate had done was to conclude that the CDPP had lawful authority to carry on the committal proceedings. He submitted that however this conclusion was categorised, it did not constitute an "order" for the purposes of s. 53(3)(a).
Senior counsel pointed out, in particular, that no decision had been made by the Magistrate as to whether the plaintiff should be committed for trial. In doing so, senior counsel took particular issue with the proposition that the Magistrate's conclusions had had the "profound effect" upon the plaintiff which had been suggested. Senior counsel argued that such a proposition erroneously assumed that in the event that the Magistrate had decided that the CDPP did not have the power to prosecute the State offences, the plaintiff would inevitably have been discharged. This, it was submitted, overlooked the provisions of s. 61(1)(b) of the CPA which allowed the Magistrate to adjourn the proceedings in the event that the prosecutor did not appear.
Senior counsel also argued that the suggested effect of the Magistrate's decision upon the plaintiff erroneously assumed that the plaintiff will inevitably be committed for trial. It was submitted that such assumption overlooked, in particular, the provisions of ss. 64-66 of the CPA which govern the conduct of committal proceedings. It was submitted that the most that could be said in the circumstances was that the plaintiff may be committed for trial at the conclusion of the committal proceedings but that the time for determination of that question had not been reached. In short, it was submitted that the Magistrate's conclusions did not deprive the plaintiff of the opportunity of being discharged.

Consideration and conclusion

In R v Lethlean (1995) 83 A Crim R 197 Sheller JA, having reviewed a number of authorities, observed (at 202) that there was no "bright line" which differentiated between judgments and orders on the one hand, and rulings (which do not constitute judgments or orders) on the other. The absence of a clear differentiation had previously been the subject of observations by King CJ in Legal Practitioners Complaint Committee v A Practitioner (1987) 46 SASR 126 where his Honour said: "There is no completely satisfying definition of either "judgment" or "order" and no exhaustively definitive way of distinguishing between judicial acts which should be characterised as judgments and judicial acts which should be characterised as orders…A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge. The question decided may be the substantive question or one of the substantive questions raised in the action; or it may be the question or one of the questions raised in interlocutory proceedings taken in the course of the progress of the action. Judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions. Examples of such incidental rulings are those which relate to adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact, law or procedure made during the course of a hearing. Such incidental rulings are not judgments or orders and are therefore not appealable even by leave."
In R v Bozatsis; R v Spanakakis (1997) 97 A Crim R 296 Gleeson CJ, having referred to the observations of King CJ, said (at 303): "However, rulings also decide questions. It is the character of the question, and the effect of the decision that makes the difference."
The clarifying observation of Gleeson CJ was adopted by Basten JA in Sasterawan v Morris [2010] NSWCCA 91 who said at [28]: "It is the character of the question, and the effect of the decision that distinguishes a judgment or order from an incidental ruling made in the course of proceedings.
Accordingly, whilst there is no clear test for determining whether a judicial act constitutes an order the question which is being determined, and the effect of the determination, are important considerations. So much was recognised by counsel for the plaintiff, whose submissions concentrated upon what was said to have been the effect, upon the plaintiff, of the Magistrate's conclusions.
Whether the CDPP had the power to prosecute the state offences was a discreet issue raised before the Magistrate when he was carrying out his functions pursuant to the CPA. So much is clear from the Magistrate's approach (at [11]): "The issue is whether the CDPP had the power to carry on (or as he and the NSWDPP through him argue they had) the hearing of the committal proceeding for the state charges".
The broader (and ultimate) question before the Magistrate was whether the plaintiff should be committed to stand trial for all or any of the State offences. The Magistrate did not determine that question. His reasons (at [61]) contemplated that such a determination would be made after hearing further submissions. In this respect the Magistrate said: "The Court will separately consider and determine the accused's further contentions".
In these circumstances I am unable to accept the submission made by counsel for the plaintiff that the Magistrate's conclusion has had the profound effect of denying the plaintiff the benefit of being discharged. In my view, such a submission misconstrues the effect of what the Magistrate did. The Magistrate decided the discreet issue which he articulated at [11] of his reasons. That decision did not deny the plaintiff the benefit of a discharge at all. It remains open to the plaintiff to make submissions to the Magistrate as to why he should not be committed for trial. The Magistrate's reasons (at [61]) clearly contemplate that further submissions will be made.
Even if the Magistrate had accepted the submissions made on behalf of the plaintiff and had determined that the CDPP had no power to prosecute the State offences, such a determination would not have compelled the plaintiff's immediate discharge. The Magistrate retained a discretion to adjourn the proceedings pursuant s. 61(1)(b) of the CPA. I accept the submission of senior counsel for the plaintiff that whilst the question of an adjournment would obviously have been a matter for the Magistrate's discretion, the seriousness of the charges against the plaintiff are such that it could be reasonably expected that had the issue of an adjournment arisen, the Magistrate would have given it close and careful consideration.
In my view, all of these circumstances support a conclusion that the Magistrate's conclusion is not an order for the purposes of s. 53(3)(a): R v Colby and anor. (1995) 84 A Crim R 125 at 138; Director of Public Prosecutions v Schebel [2004] NSWCA 187; (2004) 145 A Crim R 576 at [54]-[59]; 584-585; Nanevski v Haskett [2006] NSWSC 1114 at [25]; Thompson v Director of Public Prosecutions [2014] NSWSC 522 at [39].
In support of his submissions as to the effect, upon the plaintiff, of the Magistrate's decision, counsel for the plaintiff relied upon observations made by O'Keefe J in Anson v The Director of Public Prosecutions (NSW) [2002] NSWSC 408; (2002) 129 A Crim R 328. Those observations were made in the context of the (now repealed) provisions of s. 104(4) of the Justices Act 1902 (NSW) which were in the following terms: "A defendant or an informant may appeal under this Division to the Supreme Court against any interlocutory order that is made by a Magistrate in summary proceedings on a ground that involves a question of law alone, but only with the leave of the Supreme Court"
O'Keefe J said (at [40]; 335): "… the decision had the effect of changing fundamentally the procedure for the determination of the guilt or innocence of the accused. Moreover, it had the effect of exposing the plaintiff to a more severe penalty than would be the case were the matters to be determined summarily. The decision was a precursor to an entry on the record that would follow necessarily from the decision that the plaintiff should be committed for trial, an outcome which would form part of the record of the Local Court, in much the same way as the decision by the trial judge in Regina v Bozatsis (supra) would necessarily lead to an acquittal being directed and then entered on the record of the Court."
In my view, his Honour's observations are distinguishable from the circumstances of the present case on a number of bases. In particular, the decision of the Magistrate in the present case: 1. has not changed, fundamentally or otherwise, the procedure for determining the question of whether or not the plaintiff should be committed for trial; 2. has not had the effect of exposing the plaintiff to a more severe consequence than he would otherwise have faced; and 3. does not lead to the inevitable consequence that the plaintiff is to be committed for trial.
I am also unable to accept the submission that the Magistrate's reasons are to be construed as determining that the proceedings are not to be dismissed. As I have noted, the Magistrate was determining the discreet issue of whether the CDPP had the power to prosecute the State offences. In determining that the CDPP had that power, the Magistrate effectively concluded that the proceedings should not be dismissed on that particular basis. The question of whether, in light of the provisions of ss. 61-66 of the CPA, the plaintiff should be committed for trial has not yet arisen for consideration. It is evident, from his observations at [61] of his reasons, that the Magistrate proposes to consider that issue in light of any further submissions made on the plaintiff's behalf.
The reliance by counsel for the plaintiff upon the observations of Spigelman CJ in Cheikho v R [2008] NSWCCA 191; (2009) 75 NSWLR 323 in this regard is, in my view, misplaced. That case involved (inter alia) a question of whether the decision of a trial judge upholding the constitutional validity of s. 18(2) of the Telecommunications (Interception and Access) Act 1979 (Cth). Spigelman J said (at [32], citations omitted): "[32] The decision of Whealy J was a judicial act that determined an identifiable and separate part of the proceedings, namely the constitutional validity of s 18(2) of the TIA. … In my opinion, there is a "judgment or order" within s 5F."
In reaching that conclusion, his Honour referred to an earlier decision of R v RAG [2006] NSWCCA 343. The decisions in both Cheikho and RAG involved a consideration of whether the decision in question constituted an "interlocutory judgment or order" (within the meaning of s. 5F of the Criminal Appeal Act 1912) as opposed to a ruling on the admissibility of evidence. No such issue arises in the present case.
For all of these reasons, the conclusions of the Magistrate do not constitute an "order" for the purposes of s. 53(3)(a) of the Appeal and Review Act. Accordingly, the plaintiff is not entitled to relief under that Act.

ALTERNATIVE RELIEF UNDER THE SUPREME COURT ACT 1970

The legislation

Section 69 of the SCA, pursuant to which the plaintiff seeks alternative relief, is in the following terms: 69 Proceedings in lieu of writs (1) Where formerly: (a) the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or (b) in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course, then, after the commencement of this Act: (c) the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but (d) shall not issue any such writ, and (e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and (f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules. (2) Subject to the rules, this section does not apply to: (a) the writ of habeas corpus ad subjiciendum, (b) any writ of execution for the enforcement of a judgment or order of the Court, or (c) any writ in aid of any such writ of execution. (3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings. (4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination. (5) Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is, according to common law principles and disregarding those subsections, effective to prevent the Court from exercising its powers to quash or otherwise review a decision.

Submissions of the plaintiff

In short, counsel for the plaintiff submitted that I should find that in concluding as he did, the Magistrate had failed to exercise his jurisdiction under s. 61 of the CPA. It was submitted that such a failure had arisen as a consequence of an erroneous interpretation of the CDPP Act, and that in these circumstances relief under s. 69 of the SCA was available.

Submissions of the first defendant

Senior counsel for the first defendant submitted it was not sufficient for the plaintiff, for the purposes of relief under s. 69 of the SCA, to show an error of law, and that the plaintiff was required to establish jurisdictional error. It was submitted that in the present case, jurisdictional error could only be established if a conclusion were reached that the Magistrate's ruling fell outside the limits of the functions and powers conferred on him.
It was submitted that the Magistrate's decision was about a matter that he was authorised to determine and that there had been no actual or constructive failure on his part to exercise his jurisdiction under the CPA. It was submitted that even if his decision was reflective of error, it was an error within jurisdiction as opposed to a jurisdictional error and that accordingly, relief under s. 69 was not available.

Consideration and conclusion

In Thompson (supra) Davies J, having reviewed the relevant authorities, said the following in respect of relief under s. 69 of the SCA (at [32]): "It is clear, however, from all of these cases that relief will only be granted where there has been an actual or constructive failure by the magistrate to exercise jurisdiction under the relevant Act. It will not be sufficient for the Plaintiff to show an error of law. It will only be jurisdictional error if the magistrate makes a decision outside the limits of the functions and powers conferred on him or does something which he lacks power to do. Incorrectly deciding something which he is authorised to do is an error within jurisdiction: Re Refugee Tribunal; ex part Aala [2000] HCA 57; (2000) 204 CLR 82 at [163]".
It was not suggested by counsel for the plaintiff that the Magistrate's decision fell outside the limits of the functions and powers which were conferred on him. What was submitted was that the Magistrate incorrectly decided the issue before him. I accept the submission made by senior counsel for the plaintiff that incorrectly deciding an issue which the Magistrate was authorised to determine would, if it were made out, constitute an error within jurisdiction, as opposed to jurisdictional error. It follows that even if the plaintiff's position as to the power of the CDPP to prosecute the State offences is correct, no relief is available under s. 69.

ORDERS

In circumstances where I have concluded that neither the principal nor the alternative relief sought by the plaintiff is available, it is unnecessary for me to consider the question of whether the CDPP had the power to prosecute the State offences before the Magistrate.
I make the following orders: 1. Leave to appeal is refused. 2. The summons is dismissed. 3. The first defendant is to provide to my Associate, on or before 12 June 2015, any written submissions as to costs, such submissions not to exceed two pages in length. 4. The plaintiff is to file any submissions in reply by 16 June 2015, such submissions not to exceed two pages in length.

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: 05 June 2015

Director of Public Prosecutions Act 1983(NSW)

BAB(5), Customs Act 1901(Cth)

Justices Act 1902(NSW)

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