Iqbal v R

Judgment 1The applicant sought leave to appeal pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 against a ruling in respect of his prospective trial made by a judge of the District Court on 4 October 2011. 2The applicant has been charged with recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900. He was initially charged with the offence by way of a CAN requiring him to appear before the Local Court on 22 February 2011. On 11 January 2011 an order was made in the Local Court for service of the brief of evidence and the time for an election as to whether the offence will be dealt with on indictment was fixed for 22 February 2011. 3On 22 February 2011 the police informant was represented by a police prosecutor. The prosecutor told the Court and it was indicated that "no election" to have the matter heard in the District Court would be made. Subsequently, the matter was listed for summary hearing in the Local Court on 17 June 2011. 4That hearing date was later vacated at the request of the applicant and on 13 May 2011 a new hearing date of 24 to 26 October 2011 was fixed. On 2 June 2011 the Director of Public Prosecutions ("DPP") determined to take over the matter. He elected to have the prosecution proceed by way of indictment. 5On 7 July 2011 the matter was relisted for 28 July 2011 to allow the DPP to make an application to vacate the hearing date. On 28 July 2011 the hearing of that application was stood over to 4 August 2011. 6On 4 August 2011 the Director made an application pursuant to s 263(2) of the Criminal Procedure Act 1986 for leave to have the matter proceed by way of indictment and to vacate the hearing date in the Local Court. The Local Court magistrate refused leave and the hearing date was maintained. No appeal was lodged in respect of that decision. 7On 23 September 2011 an ex officio indictment was filed in the District Court. Before that court the applicant applied for a stay of the prosecution, contending that it was an abuse of process. The application was refused resulting in the application for leave to appeal to this Court. 8The applicant's argument was helpfully confined. It was submitted that by filing an ex officio indictment the Director of Public Prosecutions had elected to avoid the decision properly made in the Local Court to refuse leave to elect pursuant to s 263(2) of the Act resulting in an abuse of process. It was submitted that the abuse arises from the impact of the Director's decision upon public confidence in the proper administration of justice. 9Before the District Court reliance was placed on the High Court's decision in Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 where Mason CJ, Dawson, Toohey and McHugh JJ identified (at 520) two fundamental policy considerations which must be taken into account when dealing with an alleged abuse of process in the context of criminal proceedings. Their Honours said: "The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure can lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice." 10Before this Court the applicant accepted that the filing of ex officio indictment by the DPP is not reviewable by the courts. It was also accepted that the filing of the ex officio indictment has the effect of removing the jurisdiction of the Local Court to determine the matter. The applicant emphasised that rather than seeking to vacate the hearing date in the Local court on the basis that an ex officio indictment would be filed (no decision being made to file an indictment until after the refusal of leave in the Local Court) the DPP applied pursuant to s 263(2) of the Criminal Procedure Act for leave to elect to have the matter proceed by way of indictment. When leave was refused, instead of seeking a review of that order in the Supreme Court, the DPP proceeded by way of ex officio indictment. It was submitted that by now allowing the proceedings to continue in the District Court the DPP would be permitted to evade or ignore the decision by the Local Court refusing the application for leave to elect, thereby leading to an erosion of public confidence in the processes of both the Local and District Courts. 11Chapter 5 of the Criminal Procedure Act provides for the summary disposal of indictable offences by Local Courts. Section 258 sets out the objects of Chapter 5 which are to require the indictable offences (listed in the relevant table) to be dealt with summarily unless the prosecutor, or in some cases the person charged with the offence concerned, elects to have the offence dealt with on indictment. In the present case the offence with which the applicant has been charged is found in Table 1. 12Section 260 of the Act provides that an indictable offence listed in Table 1 to Schedule 1 is to be dealt with summarily unless the prosecutor or person charged with the offence elects to have it dealt with in accordance with Chapter 5 on indictment. An indictable offence listed in Table 2 to Schedule 1 is required by s 260(2) to be dealt with summarily by the Local Court unless the prosecutor elects to have it dealt with on indictment. 13Section 263(1) provides that an election to have an offence dealt with on indictment "must be made within the time fixed by the Local Court." Subsection 2 provides that "an election may, with the leave of the Local Court, be made after the time so fixed if the court is satisfied that special circumstances exist." Subsection 3 provides that an election may not be made after evidence has commenced to be taken in a trial, or facts presented in respect of a sentence hearing for a person who pleads guilty. 14The applicant disavowed any submission that the legislative scheme inhibited the director's capacity to file an ex officio indictment. The submission was confined to the argument that having made an application to the Local Court seeking leave to make an election out of time, which failed, it was an abuse of process to seek to prosecute on indictment in the District Court. 15Chapter 5 was previously found in Part 9A of the Act. In R v Bartalesi; R v Fragassi (1997) 93 A Crim R 274 this Court considered whether the provisions of Part 9A inhibited the Director from filing an ex officio indictment. Section 4 of the Act was then in similar terms to s 8 of the present Act. Section 8 provides for prosecution on indictment for all offences other than an offence that is required to be dealt with summarily: s 8(3). 16In Bartalesi Handley JA concluded that Part 9A (as it then was) and s 4 (as it then was) must be reconciled to make them consistent. His Honour said: "This is not difficult because in my view Part 9A (except s 33H(2)) [which deals with the service of the brief of evidence and a person's criminal record] should be construed as directions to the Local Court to govern it in the exercise of its jurisdiction, which have no direct application to the Supreme and District Courts in the exercise of theirs. Section 4(2) can thus continue to authorise the prosecuting authority to commence proceedings by indictment in those courts as it did prior to commencement of Part 9A." 17Bartalesi was concerned with the situation where an ex officio indictment was filed following the refusal of a magistrate to commit the accused for trial in respect of offences arising out of the same facts. The accused persons sought to have the prosecution stayed on the ground that Part 9A of the Act had overridden s 4. 18Although rejecting the accused's argument Handley JA acknowledged that there may be circumstances in which an ex officio indictment may be stayed for abuse of process "where the absence of prior committal proceedings will occasion unfair prejudice to the accused": see Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 and Barron v Attorney-General (NSW) (1987) 10 NSWLR 215; 29 A Crim R 230. However, his Honour indicated that the argument in Bartalesi was not framed upon a claim of unfair prejudice. 19In Kolalich v DPP (NSW) [1991] HCA 47; (1991) 173 CLR 222 the High Court accepted that "it is well established that the DPP clearly has power to present an ex officio indictment charging a person with an offence notwithstanding that the committing magistrate has declined to make an order committing him for trial on a charge of that offence" (p 227). However, the Court also acknowledged that circumstances could arise in which an exercise by the DPP of that power would constitute an abuse of process. 20There is little to distinguish the present circumstances from the situation where a magistrate has declined to commit an accused person. In each case the DPP has chosen to file an indictment in circumstances where a decision in the Local Court would not provide the foundation for the prosecution of the alleged offence on indictment. 21In Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 the High Court was careful to identify that what amounts to abuse of process has not been definitively identified and is "insusceptible of a formulation comprising closed categories" [9]. Gleeson CJ, Gummow, Hayne and Crennan JJ instance the situation where proceedings have been commenced in a second forum where there are pending proceedings in another forum. In that circumstance there will be an unfairness to the accused person which may be an abuse of process requiring the remedy of a stay. The applicant submitted that the present circumstance is similar in that proceedings have been instituted in the District Court where there are proceedings in another forum. That may be an argument for the Local Court proceedings to be stayed if it was suggested that they should proceed to a hearing but does not otherwise support the applicant's argument. 22Senior Counsel for the applicant in the present case disavowed any argument that by reason of the Director filing an ex officio indictment the applicant would suffer unfair prejudice. To my mind that concession is rightly made. Although, as was submitted on his behalf, the applicant has been required to defend the Director's application for leave in the Local Court his ultimate trial in the District Court will not be prejudiced in any manner because of the procedure which has been followed. If there is any issue that requires exploration before trial this may be dealt with in the now conventional manner of a Basher inquiry. 23The prosecutor's discretion to proceed by ex officio indictment was confirmed in PM v The Queen [2007] HCA 49; (2007) 232 CLR 370. In that case the High Court determined that although the offence could have been prosecuted in the Children's Court, this did not preclude the Director from filing an ex officio indictment. However, that decision was determined by the relevant provisions of the Children (Criminal Proceedings) Act 1987 (NSW) and did not give rise to a principle of general application. 24Although I can appreciate that in the present case the applicant may be disappointed because his expectation that he would be dealt with in the Local Court has been denied I am not persuaded that the procedure which has been adopted would lead to an erosion of public confidence in the processes of either or both the Local and District Courts. Indeed, my present understanding of the facts to be alleged against the applicant are such that public confidence in the criminal justice system may be adversely impacted if the matter is not prosecuted on indictment.