Hall v Director of Public Prosecutions

EX TeMPORE Judgment (REVISED)

1. The plaintiff challenges a decision made by a magistrate in criminal proceedings in the Local Court. The actual decision, and I am deliberately using that expression neutrally, is a grant of leave for the prosecution to proceed on indictment after the time fixed under s 263 Criminal Procedure Act 1986 (NSW) had expired. By dint of s 263(2) "an election may, with the leave of the Local Court, be made after the time so fixed [under s 263(1)] if the Court is satisfied that special circumstances exist" (my emphasis).
2. It is common ground between the parties that the learned magistrate granted leave under s 263(2) and in doing so failed to apply the statutory test of asking herself whether she was satisfied that special circumstances exist. I have used the language of challenge at the commencement of these reasons because the plaintiff in his summons commencing the proceedings has sought relieve in the alternative. First, he has sought leave to appeal from what he styles an interlocutory order of the learned magistrate in accordance with s 53(3)(b) Crimes (Appeal and Review) Act 2001 (NSW); secondly, and in the alternative, he has sought judicial review of the decision under s 69 Supreme Court Act 1970 (NSW).
3. As I have said, there is no issue between the parties that the learned magistrate failed to identify and apply the correct statutory test. The time fixed for the prosecution to make an election under s 263 is to be found in the Local Court practice notes which have been referred to by learned counsel in their written submissions. There is no question that that time had expired, on any view of it, by the time an application was made to her Honour Magistrate Robinson on 3 November 2014.
4. During the course of the Socratic dialogue her Honour indicated that there was "nothing on the Bench sheet to indicate that an election was clearly nominated" (4.15T). The legal representative for the DPP responded, "That's right. We were electing on that matter today" (4.20T). Learned counsel then appearing for the plaintiff (Mr Blair) pointed out that the election was out of time. The following exchange appears: (CB p 64 at 4.30 - .40T): HER HONOUR: Mr Blair, when you say that they're out of time, I'm not quite sure what you're referring to. BLAIR: Your Honour, I'm referring to s 263 of the Criminal Procedure Act. HER HONOUR: I'm not familiar with that section. What does it say, in effect? BLAIR: In effect, your Honour, it says an election has got to be made within the time fixed by the Local Court and can, with leave, be granted but only in circumstances as the Court is satisfied that special circumstances exist and in my submission, your Honour, this is an absolute garden variety matter; nothing at all unusual or surprising about it and your Honour wouldn't find anything special or extenuating at all to grant that leave.
5. Her Honour later returned to the matter and made the following decision (CB p 67-68 at 7.40 - 8.5T): HER HONOUR: Mr Blair, I appreciate what you have said today. It seems to me that somewhere along the line, this matter has gone off course a little bit, and it hasn't been conducted in strict compliance with the practice note but you would well know that it's not normally the position of this Court to get involved in decisions that are made within the DPP and I don't propose to get involved in their decision today. Given the confusion that has arisen with the matter thus far and the fact that there is not only outstanding material in the brief, but outstanding material of some significance, I am not prepared just to list the matter for hearing. I propose to grant the application that is made by the Crown and I will give some short reasons when I do that, but in the meantime, I would like an inquiry to be made so that all papers can be before me. I appreciate that you don't appear in all matters, but if the matters are to proceed together from here on in, I'd rather make orders in all four matters and that will also give you an opportunity just to speak with Mr Hall to get some instructions. (My emphasis.) There is no doubt that her Honour was granting leave for the DPP to proceed on indictment, although she did not in that passage, or indeed elsewhere in the transcript, formally pronounce an order in those terms. It is not necessary for the purpose of this case for me to embark upon an exposition of the meaning of "special circumstances" for the purpose of s 263(2). That may be left for another day when such an exposition is necessary to decide an appeal.
6. Two issues remain in the case. The first is whether the grant of leave to proceed on indictment is an interlocutory order within the meaning of s 53(3)(b) of the Appeals Act. If it is, the DPP accepts that the failure to apply the governing statute is a ground that involves a question of law alone and that leave ought to be granted to appeal and that the appeal should be allowed. However, the DPP says this question involves an important principle and that I should rule, or decide, that an order granting leave under s 263(2) is not, as I have said, an interlocutory order caught by the provisions of s 53. The second relates to the appropriate relief (see [17] - [19] below).
7. Dealing with the first issue, I was referred to the decision of the Court of Appeal in Salter v Director of Public Prosecutions [2009] NSWCA 357; 75 NSWLR 392 where Spigelman CJ, with the agreement of McColl and Campbell JJA, said at 394[14] "whether a decision or ruling constitutes a "judgment" or "order" turns on whether there is an operative judicial act; see Johnston v Nationwide News Pty Ltd (2005) 52 NSWLR 309 at 314 (29). There is no operative judicial act here".
8. That case concerned rulings by a magistrate in the Local Court on what were said to be preliminary questions of law germane to the case brought against the accused. The Chief Justice also referred to The Commonwealth v Mullane [1961] HCA 28; 106 CLR 166 where in the joint judgment of the High Court (at p169) it was said of ruling on a point of law without proceeding to an order to dismiss the case that there was "no determination": "It was something done in the course of the hearing".
9. In Johnston v Nationwide News Pty Ltd [2005] NSWCA 17; 62 NSWLR 309 Spigelman CJ with the approval of Beazley JA (as her Honour then was) and Ipp JA referred in approving terms to the decision of King CJ in Legal Practitioners Complaints Committee v a Practitioner (1987) 46 SASR 126 at 127. King CJ referred to a judgment or order as a judicial act which decides the question or one of the questions which is raised for the decision in the particular proceedings then before the court or judge. His Honour also gave examples of "incidental rulings" including adjournments, venue and time for hearing, admissibility of evidence and the normal exclusion of witnesses from the hearing whilst other evidence is being taken. The Chief Justice also categorised decisions upon submissions as to matters of fact, law or procedure made during the course of a hearing as incidental rulings.
10. Ms Mitchelmore of counsel, who appears for the DPP, argued by reference to those authorities that it was significant that the word "order" in s 53 appears on its own, not qualified by the context provided by the phrase "judgment or order". Moreover she emphasised the importance, in interpreting s 53, of the need to avoid an interpretation which permits, or promotes, fragmentation of the criminal process and that this matter of high policy pointed to a narrower, rather than broader, meaning to be ascribed to the word "order" where in the section.
11. Ms Hawkins of counsel, who appears for the plaintiff, argued that even if there was no formal pronouncement of an order granting leave, it is clear that by force of s 263 the time for making an election to proceed on indictment had expired and that the prosecution could not lawfully then proceed by that mode in the absence of a grant of leave; and that the court having the power to grant leave could only do so "if special circumstances exist".
12. Counsel argued that the magistrate's words (as emphasised at [5] above) should be taken as the pronouncement of an order in the form, "the prosecution is granted leave to proceed by indictment under s 263(2) of the Civil Procedure Act 1986".
13. It seems to me that there is no, one obviously correct interpretation. I acknowledge the force of the argument that incidental rulings are not orders for the purpose of this legislation. It should be pointed out however that the examples given by King CJ were given in a decision deriving from quite a different context: disciplining legal practitioners. Moreover it cannot be said that all matters of practice or procedure are excluded from s 53(3)(b). After all it is concerned with permitting appeals from interlocutory orders. By definition such orders do not finally determine the rights or liabilities of any party to the proceeding.
14. Bearing firmly in mind the need to avoid undue, or unnecessary, fragmentation of the criminal process one needs also to bear in mind that the purpose of the Appeal Act is to allow in the circumstances it prescribes, appeals from, including interlocutory, orders in criminal proceedings. Although a grant of leave for the prosecution to proceed on indictment really only goes to the mode of trial that will be followed in a particular case, it is clear that it is a significant decision because of the higher penalty to which the plaintiff will be exposed if convicted after a trial on indictment having regard to the limitations upon the powers of the Local Court to impose sentences of imprisonment.
15. Whilst I accept the matter is not free from doubt I am of the view that a grant of leave under s 263(2) is an operative judicial act and is accordingly an interlocutory order for the purpose of s 53(3)(b).
16. This makes it unnecessary for me to go on and deal with the plaintiff's application for judicial review. I will record again that the DPP accepts that the decision was vitiated by jurisdictional error. Learned counsel put it as an example of a constructive failure to exercise jurisdiction. It may be put in other ways. Given that an order in the nature of certiorari is a discretionary remedy and, as I have found there is a statutory avenue of appeal, for discretionary reasons, I would decline to issue an order in the nature of certiorari in respect of the magistrate's decision.
17. Turning now to the second point, the plaintiff sought an injunction restraining the Director of Public Prosecutions from making a further application for leave to make an election under s 263(2). However, in my view it would be inappropriate for the court to grant such relief. First in general terms it requires no citation of authority for me to say that the question of whether charges should be laid, what they should be, how they should be formulated and what mode of available trial should be adopted, subject to statute, including s 263(2), are matters within the prosecutorial discretion which in broad terms is generally considered to be non-justiciable.
18. Secondly, in Castlemaine Tooheys Ltd v State of South Australia [1986] HCA 58; 161 CLR 148, sitting at first instance, Mason A-CJ said at (156): In the ordinary course of affairs the courts should hesitate before interfering with the Executive Government's discretion to decide whether it should prosecute for offences against a statute… That case involved a constitutional challenge to South Australian legislation and in the end his Honour dismissed the application for the interlocutory injunction. That general principle is applicable here and I am not inclined to grant the injunction sought.
19. My orders are: 1. Grant leave to appeal; 2. Appeal allowed; 3. Set aside the order of her Honour Magistrate Robinson pronounced on 3 November 2014 granting leave for the prosecution to proceed as on indictment under s 263(2) Criminal Procedure Act 1986; 4. Remit the matter at the Local Court for determination according to law; 5. I note the agreement of the parties that each of them will bear his own costs.