Fantakis v Local Court of New South Wales & Ors

Procedural history

1. It is necessary to set out the procedural history of this matter in some detail as it is relevant to the determination I am required to make.
2. The plaintiff was charged with murder on 3 October 2013 and has been in custody since that date.
3. The plaintiff was initially legally represented in the Local Court, including on 24 April 2015 when his application under s 91 of the Criminal Procedure Act to cross-examine five witnesses was heard by Magistrate Still. Those witnesses were George Karmas, Maria Angeles and three police officers, namely Sergeant McGee, Detective Scipione and Detective Brennan. The Director consented to the plaintiff's application to cross-examine George Karmas, but opposed the application to cross-examine the other four witnesses. The application to examine those witnesses was heard and refused by Magistrate Still that day.
4. On a subsequent mention of the matter before Magistrate Still on 23 July 2015, the solicitor appearing on behalf of the Director informed the court that one of the police officers the subject of the plaintiff's s 91 application had dined previously at the home of Magistrate Still. When this was brought to her Honour's attention she indicated that she did not recognise that police officer nor did she remember the visit. The parties were invited to make application for the disqualification of Magistrate Still within two weeks. No such application was made during that time.
5. On 7 September 2015, Magistrate Schurr commenced a committal hearing involving the plaintiff and his co-accused Woods, Cheong and Antonia Fantakis (the plaintiff's mother).
6. On 12 October 2015, a subpoena was issued in the Local Court on the request of the plaintiff seeking production of documents by the Commissioner. That subpoena was returnable on 27 October 2015.
7. On 10 November 2015, Magistrate Schurr discharged Antonia Fantakis and committed Cheong for trial on a charge of being an accessory after the fact to murder. The committal proceedings in respect of the plaintiff and Woods were adjourned part-heard to 18 January 2016.
8. On 11 December 2015, the committal proceedings for the plaintiff and Woods were listed for mention before Magistrate Schurr. Her Honour disqualified herself from any further involvement in the matter given certain factual findings she made in relation to the plaintiff and Woods in the committal proceedings of the co-accused Cheong and Antonia Fantakis.
9. On 21 December 2015, Woods made a new application under s 91 of the Criminal Procedure Act before Magistrate Still. The Court upheld its original orders for the cross-examination of the witnesses Karmas, Angeles and Baracsz, the latter two witnesses being called only in relation to the co-accused Woods. The hearing date of 18 January 2016 was confirmed with an estimate of five days. The plaintiff was self-represented by this stage of his committal proceedings.
10. On 11 January 2016, the Commissioner filed an application objecting to the production of the remaining material sought by the plaintiff under the subpoena issued on 12 October 2015. The application was heard by Magistrate Mijovich. His Honour made orders setting aside certain items in the schedule to that subpoena.
11. On 15 January 2015, the plaintiff filed a summons in this Court seeking, inter alia, judicial review of the decision of Magistrate Still on 24 April 2015, nearly eight months earlier, to refuse his application pursuant to s 91 of the Criminal Procedure Act. A supporting affidavit of the plaintiff sworn 7 January 2016 annexes a number of documents related to both the s 91 application and to the subpoenas on the Commissioner.
12. On 18 January 2016, the committal proceedings in relation to the plaintiff and Woods commenced. Both men appeared unrepresented. The matter was adjourned to 11 April 2016, over the opposition of the Director, and given an estimate of five days.
13. On 4 February 2016, the plaintiff filed a second summons in this Court seeking, among other things, relief under s 69 of the Supreme Court Act in relation to the decisions made by Magistrate Mijovich on 11 and 18 January 2016 with respect to the plaintiff's subpoena on the Commissioner, to a change of venue application and to an application that his Honour recuse himself. A supporting affidavit of the plaintiff sworn 3 January 2016 annexes a number of documents.
14. On 26 February 2016, the plaintiff's judicial review proceedings were listed at this Court for a directions hearing before the Common Law Registrar. The proceedings were adjourned to 22 March 2016 for further directions.
15. On 17 March 2016, the committal and subpoena proceedings were listed for mention before Magistrate Mijovich. His Honour refused an application by the plaintiff's co-accused Woods to vacate the committal date. The matter was adjourned to 11 April 2016.
16. On 22 March 2016, the judicial review proceedings were again listed for directions before the Common Law Registrar. They were then listed for hearing before the Duty Judge on 4 April 2016.
17. On 31 March 2016, the plaintiff filed a notice of motion seeking an urgent stay of the committal proceedings, which were listed to commence on 11 April 2016, until the judicial review proceedings were determined.
18. On 2 April 2016, the plaintiff filed a notice of motion seeking, inter alia, that this Court order all of the relevant Local Court transcripts.
19. On 4 April 2016, Wilson J made an order for the production by the first defendant of all transcripts of proceedings in the Local Court relevant to the matters of the plaintiff and his co-accused Woods.
20. On 8 April 2016, Campbell J refused the plaintiff's application for a stay of his committal proceedings: Woods v Director of Public Prosecutions (NSW); Fantakis v Director of Public Prosecutions (NSW) (No 2) [2016] NSWSC 448. The matter was adjourned for case management before the Common Law Registrar on 10 May 2016. On that day, the plaintiff joined the Commissioner as the third defendant in the judicial review proceedings insofar as the subpoena to the Commissioner was concerned.
21. The committal hearing in relation to the plaintiff and Woods proceeded before Magistrate Mijovich from 11 April 2016 to 15 April 2006. Both men were committed to this Court for trial, the plaintiff on a charge of murder and Woods on a charge of being an accessory after the fact to murder. The matters were adjourned to the Supreme Court Arraignments List on 6 May 2016.
22. On 4 May 2016, a Deputy Senior Crown Prosecutor found a bill of indictment in relation to the plaintiff and his co-accused Woods and Cheong.
23. On 6 May 2016, the trial matter was listed for arraignment before Johnson J. A joint indictment was presented and all three men entered pleas of not guilty upon arraignment. The matter was fixed for trial on 20 February 2017 with an estimate of four months.
24. On 10 May 2016, there was another directions hearing before the Common Law Registrar in relation to the judicial review proceedings. The matter was referred to the Duty Judge, Adamson J. Her Honour adjourned the proceedings until 13 May 2016 as the duty courtroom did not have the capability for the plaintiff to appear by way of AVL. Her Honour did not make any other orders on that occasion.
25. On 13 May 2016, Adamson J granted the Director leave to file in court a notice of motion and affidavit of Marley Zelinka affirmed 9 May 2016 seeking summary dismissal of the plaintiff's summonses filed on 15 January 2016 and 4 February 2016 on the basis that there was no longer any utility in the proceedings. The matter was then adjourned to 20 May 2016.
26. On 19 May 2016, a person assisting the plaintiff emailed to the Registry a notice of motion seeking an order that the hearing of the motion filed by the Director on 13 May 2016 be stayed and that this Court order relevant transcripts.
27. On 20 May 2016, the judicial review proceedings were listed for hearing before Button J. In circumstances where the Local Court transcripts were still not available, his Honour adjourned the matter for case management before the Common Law Registrar on 3 August 2016
28. On 1 July 2016, the trial proceedings were again listed for arraignment before RA Hulme J. The trial date of 20 February 2017 was vacated on the application of the plaintiff and Woods, without opposition from the Crown, and a new trial date of 24 April 2017 was given. The estimate remained four months.
29. On 5 August 2016, the Director's motion, the plaintiff's summonses and bail proceedings came on for a directions hearing before Garling J. His Honour stood both the Director's motion and the plaintiff's summonses over to 31 August 2016 to be heard together.
30. On 17 August 2016, Garling J heard the plaintiff's bail application and reserved judgment.
31. On 31 August 2016, the judicial review proceedings came on before me for hearing.

Material relied upon by the parties at hearing

1. In support of the motion seeking an order summarily dismissing the plaintiff's summonses, Mr Smith read the affidavit of Marley Zelinka affirmed 9 May 2016 and relied upon two sets of written submissions, one dated 11 May 2016 and the other undated. The Commissioner relied upon brief written submissions dated 12 May 2016 in support of the Director's motion.
2. Mr Smith also handed up a tender bundle, a copy of which was apparently provided to Button J on 20 May 2016. That material contained an index, a copy of the notice of motion filed in court on 13 May 2016, a copy of the affidavit of Ms Zelinka affirmed 9 May 2016 annexing the indictment, the written submissions of each party to the proceedings, relevant case law, and a copy of a notice of motion dated 8 July 2016 that it seems was never filed by the plaintiff. That notice of motion seeks review pursuant to r 36.15 of the UCPR of what are expressed as ex parte orders made by Button and Adamson JJ on 26 February 2013 and 10 May 2016 respectively and seeks that those judges be prohibited from hearing any matter involving the plaintiff. The plaintiff did not press that motion at the hearing of these applications.
3. The plaintiff informed the Court that he did not have a copy of the material upon which the Director relied, nor were copies of his own submissions available to him. He pointed out that Garling J ordered on 5 August 2016 that he have access to all of his material in custody and said that his Honour's order had not been complied with. The bundle of material handed up by Mr Smith on behalf of the Director to which I refer at [41] was photocopied in the course of the hearing and provided to the plaintiff in a folder.
4. In addition to the material already filed, the plaintiff handed up an 11-page handwritten document, headed "Submissions in response to summary dismissal", addressing the Director's motion. Although the plaintiff submitted in that document that the proceedings should be adjourned in order for various transcripts and documents to be obtained, no application for an adjournment was ultimately made at the hearing.
5. Annexed to the plaintiff's submissions were other documents, being a notice of motion seeking a stay of the hearing of the Director's motion, a covering letter, a fee waiver application form, and a supporting affidavit with annexures sworn by the applicant on 8 July 2016. Also annexed were the plaintiff's submissions in relation to his temporary stay application, which was determined by Campbell J on 8 April 2016, and further submissions in respect of the application for summary dismissal. A third annexure outlines authorities with respect to temporary stays of proceedings and adjournments.
6. The plaintiff did not have copies of any of this material, so it was also photocopied during the hearing and copies provided to the Director and Commissioner on behalf of the plaintiff.

The Director's submissions

1. The written submissions made by Mr Smith on behalf of the Director in support of his motion to summarily dismiss this matter can be briefly stated. The Director's submission was simply that there is no utility to the continuation of the proceedings bought by the plaintiff in circumstances where each of the plaintiff's complaints pertains to committal proceedings that have concluded. Even if one or more of the plaintiff's complaints about the committal proceedings were made out, it was submitted, the decision by Magistrate Mijovich to commit the plaintiff for trial has been overtaken and any review of that decision or of those that preceded it is meaningless.
2. It was further submitted that the only operative decision is the decision on behalf of the Director to indict the plaintiff. Such a decision is not susceptible of review by this Court and the decision of Magistrate Mijovich to commit the plaintiff for trial was not a condition precedent to the Director's decision to indict him.
3. In support of the Director's contention, Mr Smith relied in his written submissions upon the decisions in R v Basha (1989) 39 A Crim R 337; Sergi v Director of Public Prosecutions (NSWCA, unreported, 10 September 1991); V v McDonald (NSWCA, unreported, 16 February 1995); Potier v Magistrate Maloney [2005] NSWSC 336; Iqbal v R [2012] NSWCCA 72; and Crowe v DPP (NSW) [2015] NSWSC 747.

The plaintiff's submissions

1. The plaintiff filed well over 100 pages of written submissions in this matter. Although by virtue of r 59.8 of the UCPR submissions in judicial review proceedings are not to exceed 10 pages, no issue was taken about this at hearing. The plaintiff's submissions set out in detail the relevant principles in relation to judicial review as well as the detail of the specific complaints that the plaintiff makes. In summary, the plaintiff's complaints impugn certain decisions of the Local Court magistrates who heard his committal proceedings on the basis that they were affected by jurisdictional error. The plaintiff particularises that jurisdictional error, variously, as error of law, actual or apprehended bias, denial of procedural fairness and improper purpose.
2. In relation to the Director's motion, the plaintiff submitted that the power to dismiss a matter summarily is one that courts should exercise with great caution and only in a very clear case, as a litigant is not to be deprived the right to submit genuine controversies for determination: Seven Networks Ltd v News Ltd (No 4) (2006) 214 ALR 686; Godson v Grierson [1908] 1 KB 761. The plaintiff submits that the present case is unlike the authorities upon which the Director and Commissioner rely because, in those cases, the applications for judicial review had been filed after the committal hearings had concluded and after bills of indictment had been found. In this case, the plaintiff made application to this Court for judicial review prior to being committed for trial and prior to the finding of a bill. He therefore had a legitimate expectation that this Court would hear the judicial review proceedings prior to the commencement of the committal proceedings.
3. The plaintiff submitted that this is a "most exceptional case" of the type contemplated by Johnson J in Potier v Magistrate Maloney & Ors [2005] NSWSC 336 at [50], such as would justify the grant of relief effectively to re-open committal proceedings. This was said to be because, if this Court were to grant the relief sought in the summons filed on 15 January 2016, the plaintiff has a very strong prospect of being discharged at committal. The Crown case, on the plaintiff's submission, is a very weak circumstantial one and various people involved in the matter, at both the investigation and committal phases, exhibited bias and engaged in fraudulent conduct.
4. The plaintiff submitted that, in any case, the relief sought in the summons filed on 4 February 2016 in respect of the subpoena issued on the Commissioner is not affected by the finding of a bill of indictment.
5. It was also contended by the plaintiff that Campbell J fell into jurisdictional error on 8 April 2016 when his Honour refused the plaintiff's application seeking a temporary stay of the committal proceedings. The basis of the jurisdictional error is said to be that his Honour failed to take into account relevant considerations; namely, that the plaintiff would be prejudiced at committal if the judicial proceedings were not resolved. The plaintiff submitted that it was this constructive failure to exercise jurisdiction that allowed the committal proceedings to proceed before Magistrate Mijovich. He submitted that it was an abuse of process for his committal proceedings not to be stayed.
6. During the hearing of the plaintiff's summonses, I sought submissions from the plaintiff as to why the relief sought would have any utility given that he has been committed for trial and arraigned in this Court. The plaintiff appeared to accept in the course of oral argument that the relief sought would be futile. The relevant exchange is as follows: "HER HONOUR: …let's just hypothetically assume…that it went back, you had a full committal and the Magistrate discharged you; none of that would have any effect on your trial listed for next February, do you accept that? APPLICANT: Yes, I accept that. HER HONOUR: …do you accept the futility in the relief you seek? APPLICANT: I see that it was done in a way that his Honour should have seen when examining these matters on 8 May and yes, I can see how this device, as I put it, has worked its magic because there was never a question about the legitimacy of either of my applications, it is so that they become nugatory only because of the way the case management of this has occurred. HER HONOUR: Campbell J refused the stay and the DPP, who is an independent statutory officer of which the Court has no control in those cases, found a bill. Those are the two intervening acts which it seems to me the reason I started with this is if you can persuade me of some reason why it is not futile, I would be interested in hearing that but on my reading of the law and the chronology I cannot see any practical utility in the Court granting the orders. The reason I raise that is as you would know, relief in the nature of prerogative relief or judicial review is entirely discretionary relief so one of the significant discretionary factors is whether there is any purpose to be achieved. APPLICANT: There is no purpose in terms of going back to the committal but I believe there is a valid ground that given the subpoena in itself is a separate issue removed from the committal, I do seek that that subpoena in itself be reviewed by this Court."
7. The plaintiff's primary complaint at hearing reflected that contained in his written submissions. That is, he now finds himself in a position in which the relief he seeks would be futile because the committal proceedings were not stayed. He stated during the hearing: "I was forced into a game of chess and checkmate which was out of my control."
8. I sought further assistance from the plaintiff as to why any of the matters that occurred at his committal in relation to which he is aggrieved could not be resolved in the Supreme Court as pre-trial issues. In particular, I inquired as to why the plaintiff could not file a subpoena to be issued to the Commissioner in this Court and any issue in relation to that subpoena be resolved prior to his trial. The plaintiff indicated that the Registry has rejected subpoenas that his solicitor has attempted to file. There was no further information as to why that may have occurred. During the hearing, Mr Smith on behalf of the Director undertook to pass on to the solicitor with carriage of the trial matter my suggestion that he or she telephone the plaintiff's solicitor in order to ascertain what the difficulty may be in that regard.
9. The plaintiff also submitted that the Officer-in-Charge Sergeant McGee was cross-examined during his bail application before Garling J on 17 August 2016 and that she gave answers that would assist him at trial. I indicated to the plaintiff that the transcript of the bail proceedings would be available to his legal representative.

Motion to dismiss summarily

1. I turn first to the Director's motion to have the proceedings summarily dismissed. It was conceded on behalf of the Director that it was only after the presentation of an indictment against the plaintiff that the Director moved for summary dismissal of the judicial review proceedings. The Director's position is that it is not the nature of the relief sought per se, but rather the continuance of the proceedings after an indictment was presented and the accused arraigned that renders them frivolous, vexatious and/or an abuse of process. When this motion was filed, it was the application of the Director that it should be heard prior to the hearing of the summonses. On 5 August 2016 Garling J listed the Director's motion to be heard at the same time as the plaintiff's summonses on 31 August 2016.
2. It seems to me that, given the procedural history of this matter, the nature of the relief sought and the fact that all matters came before me to be heard together, there is no legal or practical basis upon which I would need to resolve the Director's motion separately from the plaintiff's summonses. The motion has effectively merged with the substantive proceedings in that both the motion for summary dismissal and the hearing of the summonses are to be resolved on the same issue: whether it can be established that there is any practical utility in granting the relief sought. For that reason I do not propose to consider the Director's motion separately from the substantive proceedings before me.
3. If I exercise my discretion to refuse to grant the relief sought because it is futile, then there is no need to make separate findings as to whether the proceedings are also frivolous, vexatious and/or an abuse of process on the same basis.

Principles governing judicial review of committal proceedings

1. Before turning to consider the plaintiff's summonses, it is convenient to set out some of the relevant principles upon which I have relied in determining this matter.
2. First, committal hearings are now largely conducted "on the papers", that is, by the tender of written statements, or they are waived altogether. Part 2 of Chapter 3 of the Criminal Procedure Act governs committal proceedings. That Part was inserted into the Criminal Procedure Act by the Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (NSW) and commenced on 7 July 2003. The relevant provisions were formerly found in Division 1 of Part 4 the Justices Act 1902 (NSW). Section 74(1) of the Criminal Procedure Act requires that prosecution evidence in committal proceedings be given by way of written statements that are admissible as evidence under that Division. Section 78(1) provides that "a written statement of any person is, if tendered by the prosecutor, admissible in committal proceedings as evidence to the same extent as if it were oral evidence to the like effect given in those proceedings by the same person." The operation of these provisions is commonly known as the "paper committal". The magistrate may direct a witness to attend only if satisfied that there are "substantial reasons" why, in the interests of justice, the witness should attend to give oral evidence: s 91(3). Despite s 91, a magistrate may not direct the attendance of an alleged victim of an offence of violence unless satisfied that there are "special reasons", in the interests of justice, why the alleged victim should attend to give oral evidence: s 93. The requirement that prosecution evidence in committal proceedings be given by way of written statements was previously contained, in similar terms, in s 48AA(1) of the Justices Act. That provision was inserted into the Justices Act by the Justices (Paper Committals) Amendment Act 1987 (NSW) and commenced on 4 April 1988. More recently, s 68 of the Criminal Procedure Act provides for the waiver of a committal hearing on the application of an accused person and with the consent of the prosecutor. That section was inserted into the Criminal Procedure Act by the Criminal Procedure Amendment (Justices and Local Courts) Act and commenced on 7 July 2003.
3. Second, as Howie J observed in Anderson v DPP [2009] NSWSC 1184 at [18], it is exceptional for this Court to interfere in committal proceedings. In order to establish a basis for relief in the nature of mandamus, as the plaintiff seeks, a plaintiff must establish jurisdictional error in the sense of an actual or constructive failure to exercise jurisdiction: Wentworth v Rogers (1984) 2 NSWLR 422 at 433 per Glass JA. Even if jurisdictional error is established, the granting of such relief is discretionary in nature: see, for example, Wentworth v Rogers at 434. One important discretionary consideration is the need to avoid unnecessary fragmentation of criminal proceedings.
4. In the rare cases in which this Court has made orders interfering in committal proceedings, relief has usually been granted prior to the conclusion of those proceedings in the Local Court. These decisions generally pertain to the question of whether witnesses can be required for cross-examination at the committal proceedings under what is now s 91 of the Criminal Procedure Act, such as McKirdy v McKosker (2002) 127 A Crim R 217.
5. Third, the principle that it is rare for this Court to grant relief in the nature of mandamus in relation to committal proceedings applies a fortiori if the question of whether the relief should be granted comes to be considered after the plaintiff has entered a plea in the District or Supreme Court and a trial date fixed. In Sergi v DPP, Kirby P (as his Honour then was), with whom Meagher and Handley JJA agreed, noted (at 4): "1. Courts of high authority have repeatedly stressed the great circumspection which should be exercised in the provision of relief which would have the effect of disturbing the conduct of a criminal trial. There is no doubt that this court, as a supervisory court, has a wide jurisdiction to grant such relief where justice requires it. See Barton v The Queen (1980) 147 CLR 75, 96. However, it is a jurisdiction to be sparingly exercised. Lamb v Moss (1983) 49 ALR 533, 545; Bacon v Rose (1972) 2 NSWLR 793, 797; Cain v Glass (No 2) (1985) 3 NSWLR 230, CA. In part, this restraint arises out of an historical respect for the jury which takes charge of the accused once the trial commences. In part, it derives from a recognition by appellate courts of the difficulties attending the conduct of complex criminal trials. In part it follows from the large provisions to challenge a conviction on appeal if at the end of a trial, the accused is convicted and still complains about an interlocutory ruling. In part it is based upon a recognition of the dangers of the "fragmentation in the criminal process". This last consideration was mentioned most recently by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 328 and 329. It is essential that more than lip service be paid to these injunctions of restraint. They apply to this case. 2. Courts have also taken pains, of late, to stress the authority of the DPP to find a bill of indictment and the discretion which is there involved separate from the (usually anterior) exercise of discretion to commit an accused person for trial. See Director of Public Prosecutions v Kolalich (1990) 19 NSWLR 520, 527 (CCA). In the present case, the DPP has now found a bill. The order of the magistrate, although historically anterior, was not a necessary pre-condition or a legal foundation for the DPP's action. See R v Leslie Robert Butler, CCA, unreported, 16 August 1991 (per Gleeson CJ, p 4). That action stands on its own footing. The decision of the magistrate committing the claimant for trial has, thus, now been overtaken by the DPP's decision. Any order directed to the magistrate to reopen the committal proceedings could not, of itself, affect the DPP's exercise of discretion to find a bill. To the contrary, the magistrate would be entitled, unless the DPP elected to withdraw and revoke the bill so found, to regard the reopened committal as entirely futile. A later finding by the magistrate on a reconsideration of s 6 properly construed, that there was no evidence to warrant committing the claimant for trial, would leave the DPP's bill of indictment completely unaffected. The DPP has made it clear to this Court that he intends to present and prosecute his bill when the trial opens. Courts will not usually review the decision of a prosecutor to find a bill, at least in circumstances such as the present. See Grassby v The Queen; R v Woolcott Forbes (1944) 44 SR (NSW) 333, 338 (FC). Therefore, the relief sought by the claimant in this Court would not provide a useful basis for any order having the practical effect which the claimant seeks, namely the delay of the commencement of his trial." [emphasis added]
6. Sergi v DPP was determined in 1991. Four years later in 1995, the Court of Appeal (Mahoney, Handley and Powell JJA) in V v McDonald considered an appeal from a decision of Barr AJ to refuse to stay a trial for the sexual assault of a four-year-old child whilst committal proceedings were re-heard. The irregularity said to have occurred at the committal proceedings included that, in considering whether to commit the matter for trial, the Magistrate failed to have regard to whether the four-year-old complainant was a competent witness. The Court of Appeal refused the appeal and noted that, since the decision in Barton v The Queen (1980) 147 CLR 75, there have been two changes affecting criminal proceedings relevant to the appeal. Those were the introduction of the "paper committal" and the provision for trial judges to deal with issues in advance of the trial for the purpose of:
7. "…..removing or mitigating prejudice affecting the fairness of the trial and, during the course of the trial, special procedures made be adopted for that purpose, eg, by affording an opportunity for cross examination of a witness in the absence of the jury: see, eg, the case of Joseph Anthony Basha (1989) 39 A Crim R 337"
8. Although the Court of Appeal held in V v McDonald that there was no basis established for intervention because any difficulties could be dealt with by orders made in the District Court at an interlocutory or trial level, it nonetheless observed that the power to make an order that committal proceedings be re-heard after an indictment has been filed "to ensure that the trial of an accused is not unacceptably unfair" is still available in "appropriate cases".
9. Fourth, the holding of committal proceedings free from irregularity does not condition trial on indictment: R v Butler (1991) 24 NSWLR 66 at 68 and 74; cited by Johnson J in Potier v Magistrate Maloney at [46]. Earlier decisions, such as Grassby v R (1989) 168 CLR 1; [1989] HCA 45, speak of committal proceedings acting as an important "filter" (per Dawson J at [19]), but those decisions must be read in light of the significant statutory changes to the committal process that have occurred in the intervening time as set at out at [62]-[65] above.
10. In Potier v Magistrate Maloney, Johnson J dealt with an application for prerogative relief with respect to committal proceedings after an indictment was been presented in the District Court. His Honour referred to the decisions in Sergei v DPP and V v McDonald and noted that, although relief in the nature of mandamus to remit a matter to the Local Court is available with respect to committal proceedings where there is an actual or constructive failure to exercise jurisdiction, an "entirely different set of circumstances" exists where an accused has already been committed for trial and a bill of indictment found. His Honour observed at [50]:
11. "If a bill of indictment has been found in the District Court, it would require a most exceptional case for this Court to consider intervention by the grant of relief, in effect, to re-open committal proceedings. In the present case, the matter is already before the District Court. It is open to the Plaintiff to make pre-trial applications under Pt 53 r 10 District Court Rules. Likewise, it is open to the Plaintiff to make application for an inquiry in advance of trial of the type envisaged in R v Basha (1989) 39 A Crim R 337."
12. More recently, Hoeben CJ at CL in Crowe v DPP considered an application for judicial review of a decision by a magistrate not to accede to an application to examine witnesses under s 91. That application was made and heard after the plaintiff was committed for trial and a bill found. The plaintiff in that case advanced a number of submissions before his Honour as to why an order remitting a matter to the magistrate for further consideration of the application of s 91 would not be futile, even after the Director had found a bill: see at [19]-[23]. Those submissions included that s 91 continues to serve a "filtering" function that is not nullified by the capacity of the Director to file an ex officio indictment should an accused be discharged (at [20]-[21]) and that an order by this Court remitting a matter to the Local Court would effectively invite the Director to reconsider its decision to indict an accused (at [23]). Nonetheless, his Honour regarded the orders sought as having no "practical utility" and thus refused the relief on a discretionary basis. His Honour referred to the decisions in Sergi v DPP and V v McDonald and had regard both to the availability of pre-trial procedures and to the injunction in Sergi v DPP to avoid fragmenting the trial process. His Honour observed at [30]:
13. "As the authorities make clear, the fact that a bill of indictment has been found in the Supreme Court weighs heavily in favour of a refusal of any relief in this case. The learned magistrate's decision to commit the plaintiff for trial has been overtaken by the decision to find a bill. The consequences of that decision were succinctly set out in Sergi and subsequent cases."
14. I have considered the submissions made by the plaintiff in Crowe v DPP in addition to those advanced by the plaintiff in the present case.
15. Fifth, this Court has no power to review the decision of a prosecutor to find a bill, unless it can be established that the prosecutorial discretion was exercised for some improper purpose or otherwise amounts to an abuse of process. In Magaming v The Queen [2013] HCA 40; 302 ALR 461 at [68], Gageler J noted that close curial involvement in prosecutorial processes is undesirable, since the courts are a forum where criminal judgment is administered. His Honour observed: "...The main reason generally given is that the court's review of such an exercise of prosecutorial discretion would compromise the impartiality of the judicial process by involving a court in an inquiry into a forensic choice made by a participant in a controversy actually or potentially before the court. A complementary reason often given is that a court's control over its own hearing and determination of whatever charge might in fact be laid and proceeded with in the exercise of prosecutorial discretion means that "the court has other powers to ensure that a person charged with a crime is fairly dealt with"."

Disposition of the present proceedings

1. I accept the Director's submission that the arraignment of the plaintiff has overtaken the decision of the magistrate to commit the plaintiff for trial. In the circumstances, any order directed to the Local Court to re-open the committal proceedings could not in itself affect the Director's exercise of discretion to find a bill. The finding of a bill and presentment of an indictment are exercises of the independent discretion reposed in the prosecuting authority and not a confirmation of the finding of the magistrate.
2. In the decisions of the Court of Appeal in Sergi v DPP in 1991 and V v McDonald in 1995 as well as the more recent decisions of Johnson J in Potier v DPP and Hoeben CJ at CL in Crowe v DPP, the principle has been reiterated that it would be a very rare case in which this Court would make an order to the effect that committal proceedings be re-heard after the Director has found a bill. The plaintiff referred in his written submissions to the decision in Potier v DPP and in particular Johnson J's observation at [50] that such a case would be "most exceptional." It is the plaintiff's contention that his case is a "most exceptional" case because he has a good chance of being discharged at committal.
3. Although, given the above authorities, I accept that there might be some exceptional case in which there could be utility in this Court making an order that committal proceedings be re-heard after a bill has been found, I am unable to identify what that exceptional case would be. Notwithstanding the judicial observations that such a case might exist, I have been unable to find any decision in which this Court has interfered in committal proceedings after their conclusion and in circumstances in which the Director has preferred an indictment.
4. The exercise of this Court's power to remit a matter to the Local Court for consideration at a point in time after the presentment of an indictment could be perceived as a collateral attack upon the decision of the Director. If there is a proper basis to suggest that the finding of a bill was for an improper purpose or otherwise an abuse of process, the appropriate remedy is a stay of the indictment: Barton v The Queen at 96. Even if a plaintiff could demonstrate in this Court that he or she would be discharged at the committal stage if a new committal hearing were ordered (as the plaintiff contends here), the relevant authorities suggest that that factor alone would not be a sufficient basis to make such orders at a time when the trial is pending and an indictment filed.
5. In any event, even assuming that there is a hypothetical "most exceptional" case where the relief sought should be granted, there is nothing in the material before me that suggests that this is such a case. I have had regard to the written submissions handed up by the plaintiff and summarised at [51] above with respect to, in his submission, the exceptional features of this matter and in particular to his submission that the prejudice caused to him can only be cured by an order directing that his committal proceedings be re-heard.
6. I was informed at hearing of this matter that the plaintiff will be legally represented at trial. I am satisfied that the plaintiff's grievances concerning both his wish to cross-examine witnesses and his wish to access material held by the Commissioner can be addressed by the trial judge and any purported prejudice can be dealt with in that way.
7. First, the plaintiff will have an opportunity to cross-examine witnesses at trial, either on a Basha inquiry (if there is a proper basis to do so) or otherwise before the jury in the course of the trial itself. In Basha v R (1989) 39 A Crim R 337, Hunt J (with whom Carruthers and Grove JJ agreed) stated at 339: "Unless and until [an order setting aside a committal] is made, the only way in which there could be fresh committal proceedings would be if the Crown was to issue a fresh information in the same terms as those upon which orders for committal have already been made. Neither the Supreme Court nor the District Court has the power to order the Crown directly to take such a course. But a trial judge before whom an indictment is to be presented (be it the Supreme Court or the District Court) does have power to stay proceedings upon that indictment until the prejudice created by the insufficiency of the committal proceedings already undertaken has been removed. In the appropriate case, the exercise of that power may indirectly force the Crown either to lay a fresh information or to apply to the Supreme Court to set aside the committal order already made. It is obvious; however, that there would usually be many other, more efficient, ways in which that prejudice might be removed. I have myself in the past permitted an accused to cross-examine a new witness on a voir dire before he was called in the trial. We have been told that other judges have also done so, prior to any evidence being called a trial. Just how the prejudice is to be removed is for the Crown, not the courts, to determine. On the other hand, of course, the issue of whether the prejudice has in fact been removed will be for the trial court, not the Crown, to decide." [emphasis added]
8. Second, there is nothing to prevent the plaintiff from issuing a subpoena to the Commissioner returnable in this Court. In that way, any issues that the plaintiff contends were resolved incorrectly in the Local Court can be re-agitated in this Court prior to the trial. The plaintiff submitted that there was utility in remitting the matter solely in relation to the subpoena so as to expose the errors of the magistrate on that issue. There are two difficulties with that submission. The first is that the Local Court is an inferior court of record and any decision made by a magistrate has no precedential value. The second and more significant difficulty is that the Local Court only had jurisdiction to deal with the relevant subpoena because it was issued as part of the committal proceedings. The Local Court would not have jurisdiction to reconsider the subpoena issue unless the entire committal proceedings were to be remitted to that Court.
9. In exchanges with me, the plaintiff appeared to accept the futility of these proceedings and expressed frustration that he only finds himself in this position because the committal proceedings were not stayed. That may well be the case. It does not overcome the lack of utility inherent in making the orders sought.
10. Having regard to the principles guiding the exercise of the Court's discretion in matters such as these, I have reached the conclusion that the relief sought should be refused on the discretionary bases that it lacks any utility and that any alleged prejudice can be dealt with in this Court prior to trial. There is no basis for me to make orders that may have the effect of fragmenting the plaintiff's criminal proceedings for no apparent purpose.

Appeal under s 53 of the Crimes (Appeal and Review) Act

1. I note that the plaintiff brings his application for judicial review in the alternative. The alternative argument is based on section 53(3) of the Crimes (Appeal and Review) Act 2001 (NSW), which provides: "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."
2. Most of the orders that the plaintiff seeks to impugn do not come within the terms of s 53(3)(a) of the Act as being "an order…made by a Magistrate in relation to the person in any committal proceedings". For example, in Thompson v DPP [2014] NSWSC 522, Davies J held that a direction or a refusal to make a direction under s 91 of the Criminal Procedure Act is not "an order" made by a Magistrate in committal proceedings: R v Colby (1995) 84 A Crim R 125; Nanevski v Haskett [2006] NSWSC 1114 at [25]. His Honour found, however, that prerogative relief would be available if jurisdictional error were established.
3. It is not necessary to address whether the appeals brought by the plaintiff in the alternative are competent as, even if they were, the plaintiff requires the leave of this Court in order to bring such an appeal. I would refuse leave for the same discretionary reason as the prerogative relief is refused; namely, that the relief sought is futile. I note, by way of observation, that appeals brought to this Court under the Crimes (Appeal and Review) Act usually plead the Court's supervisory jurisdiction in the alternative. This is because a discretionary basis for refusing relief in the nature of the prerogative writs is that there is an alternative statutory appeal available. Nothing turns on this in the present matter
4. Given the futility of the relief sought, I have not considered whether the plaintiff has made out any of his individual complaints with respect to the conduct of the committal proceedings. I have had regard to the material contained in the plaintiff's lengthy written submissions, but I am satisfied that I do not need to make any findings regarding the merits of the plaintiff's complaints in order to find that the relief sought would be futile. I have determined this matter on the basis that even if, hypothetically, I were satisfied that the plaintiff had established jurisdictional error on the part of either Magistrate Still or Magistrate Mijovich, there would be no practical utility in granting the relief sought. For the reasons stated at [59] above, it is unnecessary for me to deal separately with the Director's motion.
5. After I had finalised this judgment but before it was delivered, the plaintiff's solicitor acting in his criminal proceedings forwarded to my Associate by way of email further handwritten submissions from the plaintiff. In circumstances where neither the Director nor the Commissioner has had the opportunity to respond to these further submissions, I do not propose to grant the plaintiff leave to file them.
6. These proceedings were brought in the court's civil jurisdiction. Accordingly the usual practice would be that costs follow the event and the plaintiff is liable for the costs incurred by the Director and Commissioner. I note that costs orders were made against the plaintiff by Johnson J in Potier v DPP and also by Hoeben CJ at CL in Crowe v DPP. Although the Director sought costs in relation to the Motion, there is no indication in the material before me regarding the position of either the Director or the Commissioner as to the appropriate costs order in the event the plaintiff was unsuccessful in his summonses. Accordingly, I do not propose to make any order in relation to costs at this stage but I grant the second and third defendants leave to seek an order for costs within 14 days of this judgment.

ORders

1. I make the following orders: 1. Dismiss the summonses filed by the plaintiff on 15 January 2016 and 4 February 2016. 2. The second and third defendants have leave to seek an order for costs within 14 days of this judgment.

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: 12 September 2016