Kang v Bishop

Judgment

1. GLEESON JA: The applicant, Edward Kang, seeks leave to appeal against orders of a judge of the Common Law Division (Schmidt J) dismissing with costs an application for judicial review of decisions of the Local Court made on 29 November 2016 and 29 March 2017. The Local Court convicted the applicant of 16 offences of fraud or intention to defraud by false or misleading statement contrary to ss 192E and 192G of the Crimes Act 1900 (NSW) and imposed a sentence of a term of imprisonment of 12 months with a non-parole period of 9 months: Kang v Bishop (No 2) [2018] NSWSC 1073.
2. As the orders sought to be challenged do not concern a matter involving a dispute of a value of $100,000 or more, the applicant requires leave to appeal: Supreme Court Act 1970 (NSW), s 101(2)(r).
3. At the conclusion of argument, the Court made the following orders: (1) Summons seeking leave to appeal dismissed. (2) Appeal dismissed as incompetent. (3) Applicant/appellant pay the first and second respondents' costs of the summons and of the appeal. (4) Reasons reserved.
4. These are my reasons for joining in those orders.

Background

1. The first respondent, Mr Bishop, is a public servant employed as a senior investigator within New South Wales Fair Trading, a Division of the Department of Finance, Services and Innovation. He commenced the prosecutions of the applicant in the Local Court by issuing court attendance notices naming himself as the prosecutor: "Jay Bishop, Public Officer".
2. Mr Bishop and the second respondent, the Department of Finance, Services and Innovation, are the only active respondents. The third respondent, the Local Court of New South Wales, filed a submitting appearance.
3. The applicant is a migration agent. The charges on which he was convicted alleged that he had fraudulently misrepresented to 11 persons, being foreign nationals, that his company would obtain sponsored employment and a visa for them upon the provision of a significant fee: Kang v Bishop [2018] NSWSC 46 at [2].
4. Following the applicant's convictions, but prior to sentencing, he filed two appeals. On 27 March 2017, the applicant commenced proceedings in the Supreme Court pursuant to s 69 of the Supreme Court Act seeking relief in the nature of certiorari to quash the decision of the Local Court and related relief. On the following day, 28 March 2017, the applicant filed an appeal in the District Court under s 18 of the Crimes (Appeal and Review) Act 2001 (NSW). He was released on conditional bail pending the hearing of that appeal. The hearing of the District Court appeal was adjourned until this application for leave to appeal had been determined.
5. On 9 February 2018, N Adams J dismissed an interlocutory application brought by the applicant to remove the proceedings for judicial review into this Court under Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 1.21(1): Kang v Bishop [2018] NSWSC 46. Her Honour gave detailed reasons for her conclusions, among others, that the matter did not concern a "significant or difficult question of law", nor raised a matter of significant public importance.
6. The sole issue ultimately raised on the application for judicial review was whether the prosecutions of the applicant for offences under the Crimes Act, ss 192E and 192G, had been validly commenced by Mr Bishop under the Criminal Procedure Act 1986 (NSW). The applicant contended that Mr Bishop did not answer the description of a "public officer" as that term is defined in s 3(1) of the Criminal Procedure Act in the absence of an express delegation of authority to bring prosecutions under the Crimes Act given by the Secretary of the Department of Finance, Services and Innovation (the Secretary). It was common ground that the Secretary had not given any such delegation to Mr Bishop.
7. Schmidt J rejected this argument and found that the prosecutions had been validly commenced. That conclusion had regard, among other things, to the provisions of ss 14, 173 and 174 of the Criminal Procedure Act and the decision of this Court in Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185.

Relevant statutory provisions

1. Section 14 is found in Ch 2, Pt 1 of the Criminal Procedure Act 1986 (NSW) and provides: A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons.
2. Sections 173 and 174 are found in Ch 4, Pt 2, Div 1 of the Criminal Procedure Act and regulate how criminal prosecutions are to be commenced by either a police officer or a public officer (s 173) or a private prosecution (s 174). Section 173 provides: If a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the officer may commence the proceedings by issuing a court attendance notice and filing the notice in accordance with this Division.
3. The term "public officer" is defined, relevantly, in s 3(1) of the Criminal Procedure Act as follows: public officer means any of the following persons, if acting in an official capacity: (a) an employee in the Public Service or the NSW Police Force, …
4. Section 3(3) of the Criminal Procedure Act provides: In the absence of evidence to the contrary, a person specified in paragraphs (a)-(f) of the definition of public officer who purports to exercise a function as a public officer under this Act is presumed to be acting in an official capacity.
5. Section 174(1) relevantly provides: If a person other than a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the person may commence the proceedings by issuing a court attendance notice, signed by a registrar, and filing the notice in accordance with this Division. ...
6. As explained by Basten JA (Grove and Hidden JJ agreeing) in Sasterawan v Morris at [18], the intention of ss 173 and 174 is to require that a notice, issued otherwise than by a police officer or a public officer with authority to do so, must be issued by the registrar. The registrar must be satisfied that the notice discloses grounds for the proceedings, that it is in the appropriate form and that no ground for refusal, identified in the rules, is applicable: s 174(2).
7. Sasterawan v Morris involved a case stated pursuant to s 5B(2) of the Criminal Appeal Act 1912 (NSW). The primary issue was a challenge to the authority of the prosecutor to commence proceedings in the Local Court. The court attendance notice had been issued by an officer of the Ministry of Transport. It was accepted that the prosecutor was a public officer within the meaning of that term in s 3(1) of the Criminal Procedure Act. The prosecutor contended that her authority to commence proceedings derived from s 14, she being a person, and a prosecution under s 178BB of the Crimes Act not being subject to any restriction requiring it to be instituted by any particular person or class of persons; and that she, being a public officer, was entitled to commence proceedings by issuing the court attendance notice in her own name pursuant to s 173. In accepting this contention, Basten JA said at [22] and [26]: [22] … Section 14 is unambiguous and clear in the breadth of its operation. There is no basis for reading it down to exclude from the concept of "person" those persons who may happen to be police officers or public officers. Similarly, the purpose of s 173 and s 174 is also clear. Those provisions say nothing about the source of authority to institute proceedings: each commences with the conditional, "if … is authorised to commence proceedings". The purpose is to place a control on persons other than police and public officers, no doubt to ensure that members of the public are not vexed by private prosecutions which have no proper basis in law, being a control placed in the hands of a registrar. Each of ss 14, 173 and 174 is qualified to reflect the fact that some statutory offences, including some which arise under the Crimes Act, are subject to restrictions on authority to prosecute for their contravention: see, for example, the Crimes Act, s 338 (perjury). … [26] Since the commencement of these proceedings, the question sought to be agitated has been put beyond doubt by the insertion in s 173, after the word "authorised", the words "under section 14 of this Act or under any other law": see Crimes and Courts Legislation Amendment Act 2006 (NSW), Sch 1 [12]. However, that amendment cannot affect the resolution of the question raised as to the validity of a notice issued in March 2004.

The primary judge's reasons

1. After noting at [24] that the applicant did not challenge the decision in Sasterawan v Morris, the primary judge remarked at [29] that while there was no definition of the expression "acting in an official capacity" in the definition of "public officer" in s 3(1), when read in context, where it is an employee in the Public Service or a police officer to whom the definition is directed, an obvious meaning is "not acting in a private capacity".
2. The primary judge found at [35] that, as in Sasterawan v Morris, neither ss 173 nor 174 of the Criminal Procedure Act create any limitation on the authority conferred by s 14 on "any person" to bring prosecutions under ss 192E and 192G of the Crimes Act; and at [36] that the construction of s 14 advanced by the applicant was not supported by the presumption in s 3(3) of the Criminal Procedure Act.
3. The primary judge found at [38] that the absence of a delegation by the Secretary to investigators, such as Mr Bishop in the case of prosecutions under ss 192E and 192G of the Crimes Act, reflected the applicable legislative scheme under the Crimes Act which did not require such a delegation. Her Honour observed at [41] that the provisions of the Fair Trading Act 1987 (NSW) do not expressly refer to prosecutions brought under the Crimes Act, or the need for a delegation of any power to bring such prosecutions, and found that is unnecessary, given s 14 of the Criminal Procedure Act, as it has been construed in Sasterawan v Morris.
4. Having noted at [57] that there was no longer an issue between the parties that Mr Bishop brought the prosecutions as part of his ordinary duties as a senior investigator employed by New South Wales Fair Trading, her Honour concluded at [61]: [61] Thus it was that s 173 of the Criminal Procedure Act required Mr Bishop to bring the Crimes Act prosecutions in the Local Court by court attendance notice in which he identified himself, as he was entitled to do, to be a "public officer". That reflected that he was an employee in the public service who brought those prosecutions in the ordinary course of his employment as a senior investigator at Fair Trading and thus in his official capacity, he being a "public officer" as defined in the Criminal Procedure Act.

The applicant's argument

1. On the hearing of the application, Mr Levet of counsel initially appeared for the applicant. After unsuccessfully seeking an adjournment, counsel informed the Court that he could not properly advance any argument in support of a grant of leave. Following a short adjournment to permit Mr Levet to confer with the applicant, the applicant appeared for himself unrepresented. He adopted the undated and unsigned written submissions in the name of Mr Alexander Tees, solicitor for the applicant, which had been served on 3 December 2018. The applicant did not seek to advance any submissions beyond those in writing.
2. The essential contention in the applicant's written submissions is that, notwithstanding that Mr Bishop answered the description "any person" in s 14 of the Criminal Procedure Act, only the Secretary has the power and function to prosecute offences under the Crimes Act and accordingly, absent a delegation, only the Secretary has "official capacity" to prosecute.
3. The submission continued that, given the absence of delegation of a power of prosecution under the Crimes Act by the Secretary to Mr Bishop, Mr Bishop did not have official capacity to prosecute. It followed, according to the submission, that s 173 of the Criminal Procedure Act was not satisfied and the jurisdiction of the Local Court was not lawfully invoked.

Disposition of application

1. The approach to an application for leave to appeal is well established. As summarised in Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28] (Gleeson JA, Macfarlan and Payne JJA agreeing): Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted: Sharpe v Heywood [2013] NSWCA 192 at [34]; McMahon v Permanent Custodians Ltd [2013] NSWCA 275 at [57]. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32].
2. The proposed appeal does not involve an issue of principle or a question of general public importance. The question, "Was the prosecutor a public officer authorised to commence the proceedings?" raised two questions of fact: Sasterawan v Morris at [16]. One is whether Mr Bishop answered the description of one of the classes of persons referred to in the definition of the term "public officer" in s 3(1) of the Criminal Procedure Act. The other is whether Mr Bishop was "acting in an official capacity" when commencing the prosecutions.
3. As to the first question it was an agreed fact in the proceedings below that Mr Bishop is, and at all relevant times has been, an employee of the New South Wales Public Service thus meeting the description in sub-par (a) of "public officer".
4. As to the second question, in commencing the proceedings Mr Bishop purported to exercise a function as a public officer under the Criminal Procedure Act; the court attendance notices named the prosecutor as "Jay Bishop, Public Officer". In those circumstances, the presumption in s 3(3) of the Criminal Procedure Act was attracted, and given the concessions by the applicant next mentioned, the presumption was not rebutted. First, as the primary judge observed at [30], it was common ground that Mr Bishop was not acting in a private capacity when he brought the prosecutions. Second, as the primary judge noted at [57], there was no issue between the parties that Mr Bishop brought the prosecutions as part of his ordinary duties as a senior investigator employed by New South Wales Fair Trading.
5. The primary judge concluded that the applicant had failed to adduce evidence that Mr Bishop was not acting in an official capacity. I am not persuaded that this conclusion is arguably wrong.
6. Insofar as the applicant seeks to attack the primary judge's reasoning rejecting the applicant's contention that only the Secretary could bring prosecutions under the Crimes Act, and that there was a need for a delegation by the Secretary of the power to bring prosecutions under the Crimes Act, the argument is devoid of merit. The Crimes Act imposes no such requirement, and s 14 of the Criminal Procedure Act allows prosecutions to be brought by "any person", which is a term that carries an established meaning as expressed in Sasterawan v Morris.
7. It may be accepted that a refusal of a grant of leave will prejudice the applicant insofar as it will preclude him from raising the "official capacity" point on his District Court appeal. However, this does not constitute an injustice in the relevant sense, given that the primary judge's conclusion is not attended by sufficient doubt to warrant a grant of leave to appeal.

Other matters

1. Three further matters should be mentioned.
2. First, the applicant filed a notice of appeal on 11 October 2018. Given the outcome of the application for leave, the appeal is incompetent and should be dismissed.
3. Second, there is no reason why costs should not follow the event: UCPR, r 42.1.
4. Third, the applicant's written submissions faintly suggested that the prosecutions in the Local Court may have been incompetent and invalid, either wholly or in part relying upon s 109 of the Commonwealth Constitution. Reference was made to a possible inconsistency between the Migration Agents Registration Application Charge Act 1997 (Cth) and the Migration Act 1958 (Cth), in particular, ss 275-332H, and ss 192E and 192G of the Crimes Act on the basis that the Commonwealth legislation expresses an intention to "cover the field", or perhaps more accurately, to "cover the subject matter" with which it deals: Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2 at [33] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).
5. Notwithstanding directions of this Court given on 3 December 2018 that the applicant file and serve by 10 December 2018 any amended submissions and amended grounds of appeal directed to this submission and also issue notices under s 78B of the Judiciary Act 1903 (Cth), the applicant did not take up that opportunity, nor issue s 78B notices. The Court was informed by Mr Levet of counsel for the applicant had decided not to raise any s 109 issue in this Court, and instead had pursued that contention by separate motion filed in the appeal before the District Court to be heard on 11 February 2019.
6. In the circumstances, this Court was not required to consider whether there was actually some issue arising under the Constitution or involving its interpretation within the meaning of s 78B. Accordingly, it was not necessary for the Court to determine whether such a matter does arise or not, irrespective of the views of the parties: cf Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd (No 3) [2010] FCA 428; (2010) 267 ALR 623 at [12] (Rares J); Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (1999) 95 FCR 292; [1999] FCA 1151 at [13]-[14] (French J).
7. For the above reasons, I joined in making the orders as indicated.
8. SACKVILLE AJA: I agree with the reasons given by Gleeson JA for the orders made on 4 February 2019. I add the following comment.
9. The applicant chose to pursue his summons seeking judicial review when he had on foot an appeal to the District Court pursuant to s 18 of the Crimes (Appeal and Review) Act 2001 (NSW). No submission was made to the primary Judge that the filing of the District Court appeal rendered the summons for judicial review an abuse of process. Nor was any submission made that the Court should exercise a discretion to dismiss the summons, given that an avenue of appeal (as distinct from judicial review) was open to the applicant.
10. In my view the fact that the applicant has an appeal on foot in the District Court is a further reason for refusing leave to appeal from the decision of the primary Judge. The applicant has chosen a bifurcated route to challenge his convictions by relying on one argument in the judicial review proceedings while preserving other arguments for the District Court appeal. The argument addressed by the primary Judge in the judicial review proceedings could have been raised in the District Court appeal.
11. A multiplicity of proceedings, particularly in relation to a criminal prosecution, is not to be encouraged.

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