JUDGMENT
1 HIS HONOUR : This is an application brought by the defendant the Director of Public Prosecutions (NSW) against the plaintiff Fayez Phillippe Hanna for an order that the summons by which the principal proceedings were commenced should be summarily dismissed pursuant to Pt 13 r 5 of the Supreme Court Rules. On the hearing of the application the Director was represented by senior counsel. Mr Hanna was not legally represented and appeared in person.
2 In the principal proceedings Mr Hanna by his amended summons seeks a declaration that the decision of the Director of Public Prosecutions to take over sixty-three criminal prosecutions commenced by Mr Hanna against five individuals Geoffrey Campbell Kearns, Fikry Wadid Maks, his wife Mona Adly Maks, Tatiana Onano and Adrian Salem was ultra vires. The plaintiff's summons is supported by an affidavit of Mr Hanna sworn 10 August 2004. It is apparent from Mr Hanna's affidavit that the relief sought by him is more extensive than the relief stated in the summons and extends to seeking a declaration that the decision of the Director to take over the sixty-three prosecutions and the decision of the Director to decline to proceed further with the prosecutions are void on a number of administrative law grounds.
3 The Director of Public Prosecutions' application to have the plaintiff's summons dismissed is supported by an affidavit sworn by Helen Christine Langley, a solicitor employed in the office of the Director of Public Prosecutions.
4 It is convenient to outline some of the rather complicated background facts. I have taken the outline I am about to give from parts of the affidavits of Mr Hanna and Ms Langley which were not in dispute on the hearing of this application. I have had regard to all of the matters deposed to in the two affidavits, whether or not I refer to them in the following outline.
5 Between June 1994 and June 1999 Mr Hanna was a registered migration agent under the Migration Act 1958 (Cth). However, in June 1999 his registration as a migration agent lapsed. On 9 October 2001 two informations against Mr Hanna were laid by Mr Kearns, who was an investigator in the Department of Immigration and Multicultural Affairs, alleging that Mr Hanna had committed an offence under s 283(1) of the Migration Act in that not being a registered agent he had represented that he was a registered agent and an offence under s 284(1) of the Act in that not being a registered agent he had advertised that he gave immigration assistance. The Commonwealth Director of Public Prosecutions had the conduct of these prosecutions for offences under a Commonwealth Act.
6 The hearing of the two informations against Mr Hanna commenced at Bankstown Local Court on 20 May 2002 and continued on 21 May 2002. At the hearing on those days Mr Hanna was legally represented.
7 On 20 May evidence was given by Mr Maks, who was the proprietor of a newspaper, in which, according to the prosecution case, advertisements by Mr Hanna that he gave immigration assistance had appeared after his registration as a migration agent had lapsed; by Mrs Maks; and by Tatiana Onano, who was then a migration agent but who had formerly been employed by Mr Hanna as a migration consultant.
8 On 21 May 2002 Mr Hanna himself gave evidence in his own case. The proceedings were adjourned while Mr Hanna was still being cross-examined.
9 On 20 August 2002 the Commonwealth Director of Public Prosecutions wrote a letter to Mr Hanna's solicitors, enclosing a statement by Adrian Salem and giving notice that the informant intended to call Mr Salem as a rebuttal witness in a case in reply.
10 On 2 September 2002 the hearing of the two informations against Mr Hanna was continued. Mr Hanna was no longer legally represented. There was no further cross-examination of Mr Hanna but further evidence was given by Mr Hanna as being evidence in re-examination. The informant was permitted to present, and presented, a case in reply. In the case in reply Mr Salem gave evidence.
11 On 2 September 2002 the magistrate gave judgment. In his judgment the magistrate found that the offence charged under s 284(1) of the Migration Act, that not being a registered agent Mr Hanna had advertised that he gave immigration assistance, had been proved and Mr Hanna was convicted of this offence. However, the magistrate found that the offence charged under s 283(1) of the Migration Act, that Mr Hanna not being a registered agent had represented that he was a registered agent, had not been proved and that information was dismissed. For the offence under s 284(1) of the Act Mr Hanna was fined $2,500 and ordered to pay court costs.
12 Mr Hanna took various steps to challenge his conviction for the offence under s 284(1) of the Act. One step he took was to appeal to the District Court. His appeal to the District Court was heard on 5 and 6 June 2003. On 11 June 2003 his appeal was dismissed.
13 In July 2003 Mr Hanna lodged a notice of intention to appeal to the Court of Criminal Appeal but on 10 July 2003 the Registrar of the Court of Criminal Appeal wrote a letter to Mr Hanna, informing him that the Court of Criminal Appeal had no jurisdiction to entertain the proposed appeal and Mr Hanna did not proceed further with any appeal to the Court of Criminal Appeal.
14 On 19 December 2003 Mr Hanna filed an appeal to the Court of Appeal. This appeal was heard by the Court of Appeal on 13 May 2004, when the Court of Appeal reserved its judgment.
15 When Mr Hanna commenced these proceedings and swore his affidavit on 10 August 2004 the Court of Appeal had not yet given judgment on Mr Hanna's appeal. Coincidentally, on the following day 11 August 2004 the Court of Appeal delivered its reserved judgment. Mr Hanna's appeal was dismissed on the ground that he had failed to show any jurisdictional error or any error of law on the face of the record.
16 On 24 February 2003 Mr Hanna laid the sixty-three informations with which the present proceedings are concerned.. Twenty-nine of those informations were laid against Mr Kearns. The charges comprised four charges of subornation of perjury pursuant to s 333 of the Crimes Act, one charge of perjury pursuant to s 327 of the Crimes Act, one charge of perjury with intent to procure conviction pursuant to s 328 of the Crimes Act, four charges of perverting the course of justice pursuant to s 319 of the Crimes Act, four charges of tampering with evidence pursuant to s 317 of the Crimes Act and 15 charges of misleading documents or statements used or made by an agent pursuant to s 249C of the Crimes Act.
17 Ten informations were laid against Tatiana Onano. The charges comprised one charge of fraudulent misappropriation of moneys pursuant to s 178A of the Crimes Act, one charge of obtaining money by deception pursuant to s 178BA of the Crimes Act, one charge of perjury pursuant to s 327 of the Crimes Act, five charges of perjury with intent to procure conviction pursuant to s 328 of the Crimes Act one charge of subornation of perjury pursuant to s 333 of the Crimes Act and one charge of perverting the course of justice pursuant to s 319 of the Crimes Act.
18 Seven informations were laid against Mr Salem. The charges comprised one charge of larceny by a clerk or servant pursuant to s 156 of the Crimes Act, one charge of obtaining money by deception pursuant to s 178BA of the Crimes Act, one charge of obtaining money by a false or misleading statement pursuant to s 178BB of the Crimes Act, one charge of tampering with evidence pursuant to s 317 of the Crimes Act, one count of perverting the course of justice pursuant to s 319 of the Crimes Act and two charges of perjury with intent to procure conviction pursuant to s 328 of the Crimes Act.
19 Eleven informations were laid against Mr Maks. The charges comprised one charge of blackmail by threat to publish pursuant to s 100A of the Crimes Act, two charges of accusing or threatening to accuse of crime to extort money pursuant to s 102 of the Crimes Act, two charges of making or using false instruments pursuant to s 300 of the Crimes Act, one charge of perverting the course of justice pursuant to s 319 of the Crimes Act, three charges of perjury with intent to procure conviction pursuant to s 328 of the Crimes Act and two counts of subornation of perjury pursuant to s 333 of the Crimes Act.
20 Six informations were laid against Mrs Maks. These charges comprised one charge of perverting the course of justice pursuant to s 319 of the Crimes Act, two charges of making or using false instruments pursuant to s 300 of the Crimes Act and three counts of perjury with intent to procure conviction pursuant to s 328 of the Crimes Act.
21 Before the informations were laid Mr Hanna had sought leave to bring the prosecutions for perjury and the magistrate who had heard the two charges brought against Mr Hanna granted the application for leave to bring the prosecutions for perjury.
22 On 19 May 2003 Ms O'Shane a Local Court magistrate dismissed all sixty-three informations for want of prosecution, when there was no appearance by or for the informant when the matters were called. Later in the day Mr Hanna appeared in the court room and there was an exchange between Mr Hanna and the magistrate. The magistrate declined to revoke or vary the orders she had earlier made dismissing the informations.
23 On 29 May 2003 Ms O'Shane dismissed an application by Mr Hanna pursuant to s 100D of the Justices Act (since repealed) to annul the decision she had made on 19 May 2003 to dismiss all the informations.
24 On 26 June 2003 Mr Hanna applied to the Supreme Court for judicial review of the decisions of Ms O'Shane of 19 May 2003 and 29 May 2003. This application was heard by Shaw J on 21 October 2003 and on 14 November 2003 his Honour delivered a reserved judgment in which he quashed the magistrate's decisions of 19 May 2003 and 29 May 2003 on the ground that Mr Hanna had been denied procedural fairness and remitted all of the matters to the Local Court.
25 All of the informations were fixed for hearing in the Local Court on 3 August 2004. On 23 June 2004 the Australian Government Solicitor, acting for Mr Kearns, wrote a letter to the New South Wales Director of Public Prosecutions requesting the Director of Public Prosecutions to take over the prosecutions of Mr Kearns. On 9 July 2004 a private firm of solicitors acting for Mr Maks, Ms Onano and Mr Salem wrote a letter to the Director of Public Prosecutions requesting the Director of Public Prosecutions to take over the prosecutions of those defendants. On 26 July 2004 the same firm of solicitors wrote a further letter in which it was stated that they also acted for Mrs Maks and in which they requested the Director of Public Prosecutions to take over the prosecutions of all of their four clients.
26 These letters having been received by the Director of Public Prosecutions, Ms Langley applied herself to reading the briefs of evidence which had been served by Mr Hanna on the defendants.
27 On 29 July 2004 a letter was sent by the Office of the Director of Public Prosecutions to the Registrar of the Local Court. The letter was signed by Ms Langley on behalf of the Solicitor for Public Prosecutions. In the letter it was stated:
"The brief served in the prosecutions is presently being considered but given the number of charges and the size of that brief it is unlikely that the Director's decision about taking over the 63 matters will be available by 3 August 2004 when the matters are next listed before the court. Accordingly I ask that the matters be stood over for a period of three weeks to enable the referrals to be properly considered by this office."
28 On the following day 30 July 2004 a letter from the Director of Public Prosecutions' Chambers, signed by the Director himself, was sent to the Registrar of the Local Court. In that letter the Director referred to the sixty-three informations against Mr Kearns, Mr Maks, Mrs Maks, Ms Onano and Mr Salem and the Director continued:
"The matters having been referred to me by the solicitors acting for the defendants and the solicitors having requested on behalf of their clients that I take over the private prosecutions, I advise that pursuant to s 9(1) of the Director of Public Prosecutions Act 1986 today I took over each of the 63 prosecutions.
I further advise that pursuant to s 9(4)(b) of the Director of Public Prosecutions Act 1986 I have declined to proceed further with those prosecutions."
29 A copy of the Director's letter of 30 July 2004 was sent to Ms Langley and Ms Langley in turn sent a copy of the letter to Mr Hanna.
30 On 3 August 2004 the sixty-three informations came before a Local Court magistrate for directions. Mr Hanna appeared in person. A solicitor from the Office of the Australian Government Solicitor appeared for Mr Kearns. A private solicitor appeared for the other defendants. Ms Langley, appearing for the Director of Public Prosecutions, informed the court that the Director of Public Prosecutions had taken over all the prosecutions and had declined to proceed further, because there was not sufficient evidence to establish a prima facie case.
31 On 10 August 2004 the proceedings in this court were commenced by a summons filed by Mr Hanna, which was supported by Mr Hanna's affidavit.
32 A key assertion in the affidavit is contained in para 68, in which Mr Hanna said:
"As the taking over by the DPP of New South Wales is an administrative decision, therefore administrative law, legislation and common law apply."
33 In other parts of the affidavit Mr Hanna said inter alia that the acts of the Director of Public Prosecutions in taking over the prosecutions and declining to proceed further with the prosecutions were ultra vires, that the Director's decisions had not been made for a proper purpose, that the Director's decisions had not been made in good faith, that the Director's decisions were not in the public interest, that there was a reasonable apprehension of bias on the Director's part, that Mr Hanna should have been given an opportunity of being heard before the Director's decisions were made, that the only reason for the Director's decisions was to cover up the commission of offences by Mr Kearns and the other defendants in what was said to be the unfounded prosecution of Mr Hanna, that the Director had not exercised his own discretion in making the decisions but had acted at the request of the solicitors for the defendants. As I noted earlier in this judgment, it is apparent from Mr Hanna's written submissions that Mr Hanna seeks an administrative review of the Director's decisions on a wide range of grounds.
34 In her affidavit Ms Langley set out some of the background which I have outlined earlier in this judgment.
35 Although it was objected to by Mr Hanna and not ultimately pressed by counsel for the Director of Public Prosecutions as being admissible in evidence, an important contention in Ms Langley's affidavit is the contention in para 15 that the Director's decision to take over the private prosecutions and to decline to proceed further is unreviewable by the courts. It is submitted by Ms Langley in par 15 of her affidavit that the powers exercised by the Director are akin to the common law nolle prosequi power or the common law power to find a bill of indictment and the fact that the powers are conferred by statute on the Director of Public Prosecutions does not alter the nature of the powers being exercised.
36 I will now set out some of the provisions of the Director of Public Prosecutions Act 1986.
"4 Director
(1) The Governor may appoint a Director of Public Prosecutions.
(2) The Director shall have and may exercise the functions conferred or imposed on the Director by or under this or any other Act.
The Director is responsible to the Attorney General for the due exercise of the Director's functions, but nothing in this subsection affects or derogates from the authority of the Director in respect of the preparation, institution and conduct of any proceedings.