Landrey v Director of Public Prosecutions

Court of Appeal (NSW)|2022-10-07|Before: Ward P, Legislation Amendment J

Background circumstances

For the purposes of addressing the issue now before the Court, the factual and procedural background may be briefly outlined. None of what follows was factually controversial.
The applicant has been charged with two counts of dishonestly obtaining a financial advantage under s 192E(1)(b) of the Crimes Act 1900 (NSW), together with 23 counts of using a false document with the intention of obtaining a financial advantage, under s 254(b)(ii) of the Crimes Act.
The current court attendance notice was served on 13 October 2021 and was returnable on 23 November 2021. The committal proceedings were deemed to have commenced on the date on which the court attendance notice was issued. [3] A brief of evidence had been served pursuant to an earlier notice and was relied upon with respect to the current notice.
On 23 November 2021, the prosecutor filed a "charge certificate" identifying the offences that were to be the subject of the proceedings. It relevantly certified that the evidence available to the prosecutor was capable of establishing each element of the offences.
No case conference has yet been held, but the applicant has made an application for prosecution witnesses to attend to give evidence. The application, made pursuant to s 82 of the Criminal Procedure Act, has yet to be determined.
On 21 February 2022, the prosecutor filed a document known as a "Crown case statement". Over the following two months, the proceedings were adjourned, and the applicant and the prosecutor exchanged correspondence with respect to particulars of the charges and other matters. The present proceedings were commenced in the Common Law Division on 26 May 2022. They were removed into this Court on 5 August 2022. The proceedings in the Local Court have been adjourned until 22 November 2022.

Legislative scheme

The procedure adopted for indictable offences is dealt with in Ch 3 of the Criminal Procedure Act, which is titled "Indictable procedure". Part 1, titled "Preliminary", identifies the jurisdiction of the Supreme Court and the District Court to deal with all indictable offences. Part 2 is titled "Committal proceedings". Part 2, Div 1 provides for the commencement of proceedings by the issue and filing of a court attendance notice in accordance with that Division: s 47(1). The nature and contents of a court attendance notice are identified in s 50, which reads: 50 Form of court attendance notice (1) A court attendance notice must be in writing and be in the form prescribed by the rules. (2) The rules may prescribe one or more forms of court attendance notice. (3) A court attendance notice must do the following - (a) describe the offence, (b) briefly state the particulars of the alleged offence, (c) contain the name of the prosecutor, (d) require the accused person to appear before the Magistrate at a specified date, time and place, unless a warrant is issued for the arrest of the person or the person is refused bail, (e) state, unless a warrant is issued for the arrest of the person or the person is refused bail, that failure to appear may result in the arrest of the person or in the matter being dealt with in the absence of the person. (4) The rules may prescribe additional matters to be included in court attendance notices. (5) A court attendance notice may describe an offence, act or other thing in any way that is sufficient under this Act for the purposes of an indictment or an averment in an indictment.
Division 2 identifies the steps taken in the course of committal proceedings, as summarised in s 55: 55 Outline of committal proceedings steps Subject to this Part, the steps for committal proceedings are generally as follows - (a) committal proceedings are commenced by the issuing and filing of a court attendance notice, (b) a brief of evidence is served on the accused person by the prosecutor, (c) a charge certificate setting out the offences that are to be proceeded with is filed in the Local Court and served by the prosecutor on the accused person, (d) if the accused person is represented, 1 or more case conferences are held by the prosecutor and the legal representative for the accused person, (e) if the accused person is represented, a case conference certificate is filed in the Local Court, (f) the accused person pleads guilty or not guilty to each offence being proceeded with and the Magistrate commits the accused person for trial (if the accused person pleads not guilty) or for sentence (if the accused person pleads guilty).
It is immediately apparent from this outline of the steps in a committal proceeding that the current purpose is broadly incapsulated by the phrase "case management". As the Attorney-General observed in the Second Reading speech for the 2017 Amendment Act: [4] "… the bill abolishes the substantive committal decision and committal hearings so that magistrates will no longer be required to consider the evidence and determine if there is a reasonable prospect that a jury, properly instructed, would convict the accused person of the [offence]. Instead, magistrates will need to be satisfied that the new steps certifying the charges and holding a case conference have been completed before committing the matter to a higher court for trial or sentence."
Division 2 requires the committal proceedings to be heard "as if in open court" (s 57(1)) and requires that the magistrate explain the process and the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) with respect to the discounts that apply with respect to a sentence imposed following a guilty plea: s 59.
A critical, but now commonplace, step in the administration of criminal justice is the requirement for the disclosure of the prosecution evidence well prior to the trial. Division 3, titled "Disclosure of evidence", requires that the prosecutor serve a brief of evidence relating to each offence, the subject of the proceedings. Similar requirements are found in Ch 6 of the Criminal Procedure Act, which has been in force for almost 20 years, and which applies to all offences, whenever committed and in whatever court they are dealt with: s 274. There is no need to dwell on the particular requirements of Div 3 with respect to committal proceedings.
Division 4 of Pt 2, titled "Charge certificates" has, as has been noted, a set of requirements concerning the filing and service of a "charge certificate". Section 65 proscribes any person other than the Director, the Attorney-General or a person prescribed by regulation, from exercising the function of preparing a charge certificate. The key aspect of this division relied upon by the applicant, namely s 66(2), has already been set out. However, s 66(1), identifying the content of a charge certificate is important and should be noted: 66 Charge certificates (1) A charge certificate is a document in the form prescribed by the regulations and signed by the prosecutor that - (a) relates to the offences specified in a court attendance notice for the committal proceedings, and (b) specifies the offences that are to be the subject of the proceedings against the accused person, and (c) sets out the details of each of those offences in a way that is sufficient under this Act for the purposes of an indictment or an averment in an indictment, and (d) specifies any back up or related offences (within the meaning of section 165) that are proposed to be the subject of a certificate under section 166(1) relating to charges against the accused person, and (e) if applicable, confirms that proceedings against the accused person for other specified offences are no longer being proceeded with, and (f) contains any other matters prescribed by the regulations for the purposes of this section.
Division 5 deals with "Case conferences"; it will be convenient to return to those provisions after noting the terms of Div 6. Division 6, titled "Examination of prosecution witnesses", provides for a magistrate to give directions for a witness to attend for examination and cross-examination, where there has been consent of the parties or where an application has been made: s 82. Such an order is to be made where each party consents but, absent consent, the magistrate may only give a direction if satisfied there are "substantial reasons why, in the interests of justice, the witness should attend to give oral evidence": s 82(5). It appears that a direction must explain what were the substantial reasons for the witness attending because the cross-examination is not permitted in respect of matters "that were not the basis of the reasons for giving the direction", unless the magistrate is satisfied that there are substantial reasons for expanding the original reasons: s 85(4).
Because the evidence is neither to be given, nor challenged, for the purpose of persuading the magistrate that there is (or is not) evidence capable of supporting the charges, it is apparent, as explained by the Attorney-General in the Second Reading speech, that the purpose of permitting the examination and cross-examination of prosecution witnesses is to assist the parties, but presumably in particular the accused, "to assess better the case against the accused and to facilitate further negotiations about the charges and possible offers to plead guilty". [5]
The timing of such an application is important: it cannot be made before a charge certificate has been filed (s 82(3)) and, it may be inferred, will generally be heard either before the commencement of the case conference, or at least before a case conference certificate is filed indicating that all the case conferences have been completed: see s 74.
Case conferences are dealt with in Div 5. A case conference is to be held after the filing of the charge certificate (s 70(4)) and there may be more than one such conference: s 70(5). The importance of the case conference within the scheme of case management may be gleaned from two provisions. The first concerns the role of the accused's lawyer, which is set out in s 72 as follows: 72 Obligations of legal representative of accused (1) The accused person's legal representative is to seek to obtain the accused person's instructions concerning the matters to be dealt with in the case conference before participating in the case conference. (2) The accused person's legal representative must explain the following matters to the accused person before the case conference certificate is completed - (a) the effect of the scheme for the sentencing discount applied under Part 3 of the Crimes (Sentencing Procedure) Act 1999 for a plea of guilty to an offence, (b) the penalties applicable to the offences certified in the charge certificate and to any other offences the subject of offers made by the accused or the prosecutor in the committal proceedings, (c) the effect on the applicable penalty if the accused person were to plead guilty to any offence at different stages of proceedings for the offence. (3) Subsection (2) applies only in respect of an offence to which Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act 1999 applies.
Secondly, and in terms which emphasise the importance of the obligation on the accused's lawyer, s 75 prescribes the matters which are to be set out in a case conference certificate. These are as follows: 75 Contents of case conference certificate (1) The case conference certificate is to be in the form prescribed by the regulations and is to certify as to the following matters - (a) the offence or offences with which the accused person had been charged before the case conference and which the prosecution had specified in the charge certificate as offences that will be proceeding or are the subject of a certificate under section 166, (b) any offers by the accused person to plead guilty to an offence specified in the charge certificate or to different offences, (c) any offers by the prosecution to the accused person to accept guilty pleas to an offence specified in the charge certificate or to different offences, (d) whether the accused person or prosecution has accepted or rejected any such offers, (e) the offence or offences for which the prosecution will seek committal for trial or sentence, (f) any back up or related offence or offences (within the meaning of section 165) that are proposed to be the subject of a certificate under section 166(1) relating to charges against the accused person, (g) if an offer made to or by the accused person to plead guilty to an offence has been accepted - details of the agreed facts on the basis of which the accused person is pleading guilty and details of the facts (if any) in dispute, (h) any offences with which the accused person has been charged to which the accused person has offered to plead guilty and agreed to ask the court to take into account under section 33 of the Crimes (Sentencing Procedure) Act 1999, (i) whether or not the prosecutor has notified the accused person of an intention to make a submission to the sentencing court that the discount for a guilty plea should not apply or should be reduced in relation to a particular offence with which the accused person is charged, (j) any other matters prescribed by the regulations for the purposes of this section. (2) A case conference certificate must also contain - (a) a declaration by the legal representative of the accused person that the legal representative has explained to the accused person the matters specified in section 72(2), and (b) if the accused person does not intend to plead guilty to an offence, a declaration by the accused person that the legal representative has explained to the accused person the matters specified in section 72(2). (3) A failure by an accused person to make a declaration under this section does not affect the validity of anything done or omitted to be done by any other person in or for the purposes of the committal proceedings. (4) A case conference certificate must certify as to all the matters of the kind referred to in subsection (1) that occur before the certificate is filed, including any written offers of a kind referred to in subsection (1) that were made by the accused person or the prosecutor, and served on the prosecutor or accused person, before or after any case conference was held.
Division 7 deals with the process where a question of fitness to be tried may arise and these provisions need not be considered for present purposes. It is sufficient to note that they ostensibly serve the same purpose as the other provisions, namely, to identify and address any question which may affect the commencement and running of a trial in advance of the matter being sent to the trial court. The need for such a provision at the committal stage may reflect the difficulties identified by the absence of such an express provision from the Northern Territory laws discussed in Ebatarinja v Deland. [6]
Division 8 is titled "Committal for trial or sentence". As has been noted, it provides for the timing of a committal, namely after a case conference certificate is filed: s 95(1). (There are qualifications which do not take the question of validity any further.) Section 96, as noted, requires that the magistrate commit the accused for trial unless a plea of guilty has been accepted, in which case the person is committed for sentence pursuant to s 97.
Division 9 deals with steps to be taken by a trial or sentencing court; Div 10 relates to custody or bail, following a committal order. The only point of present relevance is the power conferred on a judge on a committal for sentence to order that committal proceedings be continued, if satisfied that the facts do not support the offence to which the accused pleaded: s 101(1). The committal proceedings are then resumed, as if the person had not pleaded guilty: s 101(2).
It is readily apparent from this synopsis of Ch 3, Pt 2 that the purpose of a committal proceeding is to ensure proper case management of the criminal process, with the dual intention that cases are not listed for trial until the possibilities of guilty pleas have been explored and, so far as possible, exhausted, and, again to the extent possible, challenges to the evidence of prosecution witnesses have been explored, so as to limit the need for interruption to the trial to allow the accused to conduct a voir dire. It is apparent from the NSW Law Reform Commission's 2014 report, Encouraging appropriate early guilty pleas (Report 141) ("NSWLRC Report"), that these were indeed the purposes underlying the proposed amendments. Although the Report did not contain a draft bill, it is clear that the 2017 Amendment Act followed closely the recommendations of the Commission. In formulating those recommendations, the Commission had regard not only to the need for procedural reform in NSW, but also to the range of models for reform which had already been adopted either in other Australian jurisdictions or overseas.

Case management in trial court

In the course of oral submissions, counsel for the applicant resisted the categorisation of the purpose of committal proceedings as "case management". That resistance no doubt reflected an appreciation that case management is an established role for judicial officers in the modern administration of both civil and criminal justice and is ancillary to the judicial function. As such it is constitutionally valid; the only distinction being that a committal proceeding is ancillary to proceedings in another court. However, a brief consideration of the procedures available in the trial courts supports that categorisation.
Proceedings in a trial court are commenced by presenting an indictment, as provided in Pt 3, Div 2 of Ch 3 of the Criminal Procedure Act. Subject to the grant of an extension of time, an indictment is to be presented within four weeks "after the committal of the accused person for trial": s 129(2). The accused is then arraigned and the opportunity for further pre-trial proceedings arises: s 130. Part 3, Div 3 contains further case management procedures.
Without attempting to be comprehensive, it is convenient to set out certain pre-trial steps which may be taken in the trial court, be it the District Court or the Supreme Court. These provisions reveal a degree of repetition of the procedures available in the Local Court. As a practical matter, it may be that some of these functions will become less important than in the past (many were introduced in 2013) as a result of the 2017 Amendment Act and the provision of similar powers in the Local Court. However, the significance for present purposes is that there has been, and could be, no objection to the validity of those provisions. For the applicant to succeed, it was necessary for him to explain why powers of a similar kind available in the trial court were valid but those preceding committal from the Local Court were not.
First, s 136 provides that "[a]t the first mention of proceedings in the court before which the trial is proposed to be heard, the presiding Judge is to give directions with respect to the future conduct of the trial." Section 139 provides for pre-trial hearings in the following terms: 139 Pre-trial hearings (1) At the first mention of proceedings in the court before which the trial is proposed to be heard or at any other time, the court may order the prosecutor and the accused person to attend one or more pre-trial hearings before the court so long as the time appointed for any such hearing occurs after the indictment has been presented or filed. (2) During a pre-trial hearing, the court may make such orders, determinations or findings, or give such directions or rulings, as it thinks appropriate for the efficient management and conduct of the trial. (3) Without limiting subsection (2), the court may take any or all of the following action under that subsection - (a) hear and determine an objection to the indictment, (b) order the holding of a pre-trial conference under section 140, (c) determine the timetable for pre-trial disclosure under section 141, (d) give a direction under section 145 (3), (e) give a ruling or make a finding under section 192A of the Evidence Act 1995 as if the trial had commenced, (f) hear and determine a submission that the case should not proceed to trial, (g) give a ruling on any question of law that might arise at the trial.
There is also a procedure for holding a pre-trial conference: 140 Pre-trial conferences (1) At the first mention of proceedings in the court before which the trial is proposed to be heard or at any other time, the court may order that a pre-trial conference is to be held so long as the time appointed for any such conference occurs after the indictment has been presented or filed. (2) The court may order the holding of a pre-trial conference under this section on application of any party or on the court's own initiative. (3) The court may make such an order only if the accused person will be represented by an Australian legal practitioner at the pre-trial conference. (4) The purposes of the pre-trial conference are as follows - (a) to determine whether the accused person and the prosecutor are able to reach agreement regarding the evidence to be admitted at the trial, (b) to identify the key issues in dispute between the accused person and the prosecutor at the trial, if any, (c) to identify any other issues relating to the proceedings against the accused person that require resolution prior to the commencement of the trial, (d) to identify or determine any other matter as directed by the court. (5) The following persons must be present during the pre-trial conference - (a) the prosecutor, (b) the Australian legal practitioner representing the accused person.
Section 141 provides for "mandatory pre-trial disclosure", further details of which are provided in s 142. Section 142 is more prescriptive than the requirements imposed on the prosecutor in the Local Court, but there may be two consequences of the Local Court procedure which are relevant at trial. First, objections to the indictment may be less likely because the prosecutor will have had to formulate the charges and negotiate over which ones to pursue whilst still in the Local Court. Secondly, the need for pre-trial disclosure under Pt 2 is likely to have led the prosecutor to be in a position where the obligations in the trial court under s 142 will already have been partly, and perhaps largely, fulfilled.
Again, however, the point of present relevance is not that there is a double administrative burden being imposed on the parties, but rather that similar steps are required to be taken under the aegis of case management in the trial court, of a similar kind to those undertaken in the course of committal proceedings. Committal proceedings are not, and never were, an exercise of judicial power. In their current form, they are a form of case management. It is difficult to see how case management provisions can impair, let alone substantially impair, the integrity of the court on which they are conferred.

History of committal proceedings

Because the applicant, no doubt for sound reasons, did not challenge the removal of the previous function of committal proceedings, requiring the magistrate to assess the capacity of the prosecution evidence to satisfy the charges, it is unnecessary to explore the history of committal proceedings in this State (or in Australia more generally) prior to the commencement of the 2017 Amendment Act. However, there was extensive reference to that history in the parties' written submissions in this Court and, accordingly, that material should be addressed briefly. (It is comprehensively explained in the NSWLRC Report.)
Arguably the incentive to explore the history resulted from the continued use of the term "committal proceedings" and the continued conferral of power on the magistrate conducting those proceedings to "commit" the accused person for trial or sentence. As further explained below, to the extent that that language implies a continuation of the traditional function of such a proceeding, it is apt to mislead.
Dawson J observed in Grassby v The Queen [7] that the then current form of committal proceeding was not established in the United Kingdom until 1848 by Sir John Jervis' Act, [8] adopted in New South Wales in 1850. When Grassby was decided the statutory source of power was s 41 of the Justices Act 1902 (NSW). Even then the primary purpose was not to determine whether the person should stand trial, but whether he or she should be committed to gaol to await trial or be admitted to bail, or discharged. In principle, that primary function changed with the abolition of grand juries, whose role it was to determine whether the person should stand trial. Grand juries were abolished in the UK in 1933, but they had not served a similar function since 1850 in New South Wales. [9] However, the maintenance in New South Wales of the ex officio indictment meant that committal for trial did not determine whether a person charged with an offence would be indicted. [10]
Since 1989, the process then found in s 41 of the Justices Act has been amended on numerous occasions. Separately, an important step in the transformation of committal proceedings in New South Wales was the establishment in 1986 of the Director of Public Prosecutions as an independent statutory officer, who was subject to direction of the Attorney-General, but not in respect of "the preparation, institution and conduct of any proceedings". [11]
By 2003, [12] prosecution evidence was to be given by written statements in admissible form: s 74(1). On the first return date of a court attendance notice, the magistrate was to set the time within which written statements were to be served and the time within which the accused must serve a notice requesting the attendance of a person who had made a written statement: s 60(1). There were detailed rules concerning the form and content of written statements: Ch 3, Pt 2, Div 3. The accused was entitled to waive a committal hearing and, with the consent of the prosecutor, the magistrate could then commit the accused for trial: s 68. Subject to a variety of restrictions noted below, the magistrate was required to give the accused an opportunity to give evidence or call witnesses: s 97. The magistrate was required to have regard to the prosecution evidence first and discharge the accused if that evidence was not capable of satisfying a reasonable jury as to the commission of the offence: s 62. If the prosecution evidence were sufficient to satisfy that test, the magistrate was then required to consider all of the evidence and, if satisfied that "there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence", commit the accused for trial: s 65(1).
In Grassby, Dawson J had identified the important functions of the committal process which may be summarised as follows: [13] 1. enabling the person charged to hear the prosecution evidence and cross-examine the prosecution witnesses; 2. enabling the person charged to put forward a defence if he or she wished to do so; 3. the marshalling of the evidence in deposition form; 4. filtering out prosecutions which should not be pursued because the evidence was insufficient, resulting in the discharge of the defendant in the Local Court, and 5. providing a basis for challenging any ex officio indictment if presented, despite the discharge by the magistrate.
The introduction in 1983 of paper committals and in 2003 of a power to waive a formal committal hearing and to proceed on the papers, in practice removed the importance of most of these functions. As recorded by the Law Reform Commission, only 65 out of some 6,000 completed committal matters in 2012-2013, or about 1%, were discharged by the Local Court at committal. [14] Of those, 40% were dismissed at a mention prior to a committal hearing, 25% were dismissed following an application for cross-examination of witnesses, and 26% were dismissed on a "paper committal". Fewer than 6% of completed committal matters involved a successful application to cross-examine a witness. [15] Further, in 18% of matters discharged at committal, an ex officio indictment was filed. [16] The Commission concluded: "8.58 The scope of committal proceedings in NSW has gradually decreased over the last 30 years. Previously all evidence was given orally. A system of paper committals was introduced in 1983 and was available if both parties consented. In 1988 it became mandatory, subject to exceptions. 8.59 Originally the defendant was entitled to cross-examine all prosecution witnesses without restriction. Although the defence was required to nominate which prosecution witnesses they wished to cross-examine, often all witnesses were requested. This was because the defence gave little consideration before the hearing to whether cross-examination was necessary. On the day of the committal hearing the defence lawyer would commonly indicate that cross-examination was only required of certain witnesses, or none at all, leading to witnesses attending court unnecessarily. Cross-examination was also sometimes used as a 'fishing expedition'. 8.60 In 1992, amendments to the Justices Act 1902 (NSW) limited the circumstances in which victims of violence could be cross-examined at a committal hearing. This was intended to shorten the committal hearing and to strike 'an appropriate balance between the rights of the accused and the need to reduce the trauma that court proceedings impose on the victims of crime'. In 1996 this limitation was extended to all prosecution witnesses."
In Commonwealth matters, both nationally and in NSW, the same rate of 1% discharge at committal obtained. [17] By contrast, 9% of matters listed for trial in the District Court were not pursued. [18]
In short, as a practical matter, in 2014 the benefits available to an accused pursuant to the scheme discussed by Dawson J in Grassby were of little practical significance. However, not all were abandoned in the 2017 Amendment Act. The availability and criteria upon which witnesses might be called for cross-examination were retained. The purpose of marshalling the evidence has been retained and the process of pre-committal case management has been given a precise structure and expanded. This was a deliberate course adopted by the Commission, having noted the adverse consequences of a simple removal of the committal hearing in other jurisdictions. [19]

Constitutional constraints: Legal principles

The foregoing discussion has assumed, without justifying, the test which is to be applied in determining the validity of the State's legislation. The applicant's case was formulated in accordance with principles stated by the High Court in Kable v Director of Public Prosecutions. [20] Those principles should be articulated.
In Kable the High Court held invalid a New South Wales law authorising the Supreme Court to order that an individual, Gregory Wayne Kable, continue to be held in custody after the expiration of a sentence, if satisfied on reasonable grounds that he was more likely than not to commit a serious act of violence if released. The reasons for declaring the law invalid were variously articulated by members of the majority. Gaudron J found that the Act purported to confer on the Court a power which was "repugnant to or incompatible with the exercise of the judicial power of the Commonwealth". [21] McHugh J declared that the Act and its procedures "compromise the institutional impartiality of the Supreme Court". [22] Gummow J accepted a submission that "the appearance of institutional impartiality in administering that law, and inflicting punishment for breach of it, is sapped to an impermissible degree by ad hominem legislation". [23] Gummow J stated: [24] "The judiciary is apt to be seen as but an arm of the executive which implements the will of the legislature. Thereby a perception is created which trenches upon the appearance of institutional impartiality to which I have referred."
There are differences of emphasis in the separate majority reasons in Kable, differences which have received closer attention in later cases. However, as explained by Professor Stellios: [25] "The court has often emphasised that the notion of institutional integrity is 'not readily susceptible of definition in terms which will dictate future outcomes'. [26] Two things, however, are clear. First institutional integrity includes, at the very least, the characteristics of independence, impartiality and fairness. Secondly, whether these characteristics have been undermined by state legislation is assessed by reference to what courts have traditionally done."
It is necessary, then, to consider the traditional function of committal proceedings. Before taking that step, reference should be made to the expression of the test of constitutional invalidity in Wainohu v State of New South Wales. [27] The case concerned the validity of a statute conferring on a Supreme Court judge power to declare, on an application by the Commissioner of Police, an organisation to be a criminal organisation, a status which imposed significant constraints on the liberties of its members. The judge was not required to give reasons for such a declaration. French CJ and Kiefel J stated: [28] "[46] A State legislature cannot, consistent with Ch III, enact a law which purports to abolish the Supreme Court of a State or which excludes any class of official decision, made under a law of the State, from judicial review for jurisdictional error by the Supreme Court of the State. Application of the Kable principle has the result that the State legislatures cannot validly enact a law which would effect an impermissible executive intrusion into the processes or decisions of a court; which would authorise the executive to enlist a court to implement decisions of the executive in a manner incompatible with that court's institutional integrity; or which would confer upon any court a function (judicial or otherwise) incompatible with the role of that court as a repository of federal jurisdiction."
The applicant adopted the language of "enlist[ing] a court to implement decisions of the executive in a manner incompatible with that court's institutional integrity" as applicable to the present case.
Returning to the issue of traditional functions, the applicant relied on the function of committal proceedings identified by Gibbs ACJ and Mason J (Aickin J agreeing) in Barton v The Queen, [29] in the following terms: "It is now accepted in England and Australia that committal proceedings are an important element in our system of criminal justice. They constitute such an important element in the protection of the accused that a trial held without antecedent committal proceedings, unless justified on strong and powerful grounds, must necessarily be considered unfair."
However, there are three reasons why care must be taken in adopting this statement without qualification, and it may be noted that the applicant did not do so.
First, the statement was made in the context of dismissing the submission that a superior court had power to review the exercise of the Attorney-General's decision to file an ex officio indictment. In that context, the joint reasons in Barton both emphasised the need for a trial court to ensure that the trial was fair and noted other means of providing fairness.
Secondly, the strong statement of three members of the Court was not reflected in the reasons of the other three. Stephen J rejected the contention that "an essential pre-condition of a fair trial is that it should be preceded by committal proceedings". [30] He expressed his reasoning in more guarded terms: [31] "Their absence will, however, always call for a careful evaluation by the trial court of all the circumstances, lest the consequent prejudice to the accused should be such as to have deprived him of a fair trial. Committal proceedings are an important part of the protection ordinarily afforded to an accused in the criminal process and for the accused to be deprived of them necessarily puts a court upon enquiry."
Murphy J stated: [32] "Every court hearing criminal proceedings has power to control those proceedings in order to avoid injustice; where necessary, it may stay proceedings. … Trial by jury without previous committal proceedings can and should be stayed until the accused has been given discovery by proper particulars and notice of the evidence to be tendered against him. But this does not entitle any court to decline to proceed on an indictment filed by the Attorney-General until there have been committal proceedings."
Wilson J stated, even more robustly: [33] "… the courts may postpone or stay the trial on any indictment in circumstances where such action is necessary to prevent an abuse of process and ensure a fair trial for the accused person. However, I am unable to agree with [Gibbs ACJ and Mason J] that a trial held without antecedent committal proceedings, unless justified on strong and powerful grounds, must necessarily be considered unfair."
Thirdly, much has changed since Barton. As noted above, the need for pre-trial disclosure of the prosecution case has been developed and refined over the intervening period. Nor has any case suggested that the traditional function of the committal proceeding was constitutionally inviolable.
The other aspect of the committal proceeding which needs to be noted is its relationship with trial or sentence proceedings which may ensue upon committal. As explained in The Queen v Murphy: [34] "As we have already mentioned, it has been said that the function of a court in deciding whether a person charged should or should not be committed for trial is non-judicial. … These statements do not, we think, fully reflect the character of committal proceedings. The hearing of committal proceedings in respect of indictable offences by an inferior court is a function which is sui generis. Traditionally committal proceedings have been regarded as non-judicial on the ground that they do not result in a binding determination of rights. At the same time they have a distinctive judicial character because they are curial proceedings in which the magistrate or justices constituting the court is or are bound to act judicially and because they affect the interests of the person charged …. The procedure followed on the hearing of committal proceedings is similar to that followed on the hearing of judicial proceedings …. Subject to the provisions of applicable Bail Acts, the ordinary consequence of an adverse determination of them is, as their name implies, the commitment to prison of the accused until the sittings of the court before which he is to be tried …. Even though they are properly to be regarded as non-judicial in character, committal proceedings themselves traditionally constitute the first step in the curial process, possibly culminating in the presentation of the indictment and trial by jury. They have the closest, if not an essential, connexion with an actual exercise of judicial power …." It followed that attempted interference with committal proceedings, which were thus incidental to, or ancillary to, the subsequent exercise of judicial power, could constitute an attempt to pervert the course of justice.
The statement may be contrasted with the reasoning in Palmer v Ayres, [35] where the High Court held that the power conferred by s 596A of the Corporations Act 2001 (Cth) to issue a summons, requiring an officer or provisional liquidator of a corporation to attend for examination about a corporation's examinable affairs, constituted an order made in the exercise of judicial power. [36] Accepting, however, the traditional view that a committal proceeding is an administrative process, particularly when conducted in a state court where it is not necessary to determine whether there is a "matter" inviting the characterisation as the subject of judicial power, the question is whether the form of the administrative function is incompatible with the judicial functions of the court. As the applicant accepts, that has never yet been held to be the case. While the current purposes and procedures are less similar to traditional curial processes than those in place in 1985, the current functions remain incidental to the curial process.

Application of principles

Factually, the present law is far removed from that addressed in Kable (and indeed that considered in Wainohu). The provisions of the Criminal Procedure Act are not concerned with an individual, but apply generically to all those charged with indictable offences in New South Wales. They do not impose punishment, but condition procedural powers which precede a person being placed on trial. They are not concerned with matters which involve no criminal charge or conviction, but rather are directed to the procedure for putting on trial a person charged with an indictable offence.
Nevertheless, counsel for the applicant submitted that the Local Court, albeit in performing an administrative function, was being required to rubber-stamp a certificate given by an officer of the prosecuting authority to the effect that there was evidence available with the capacity to satisfy the elements of the offences with which the person was charged. If that were a proper characterisation of the process, it would at least be a coherent basis for the submission that the law is inconsistent with the institutional integrity of the Local Court, being a court available for the exercise of the judicial power of the Commonwealth.
The 2017 Amendment Act, however, has removed from the Local Court a key element of the traditional function, namely the adjudication as to the capacity of the prosecution case to sustain a verdict.
Further, there was no dispute that that particular function of the Local Court had been whittled away before the 2017 Amendment Act by requiring that the prosecution serve a brief of evidence before the committal hearings, permitting committal hearings to be waived, or conducted on the papers or partly on the papers and partly by way of cross-examination of selected prosecution witnesses, and by imposing constraints on the circumstances in which cross-examination of witnesses would be permitted.
The ability in particular circumstances to require the prosecutor to call witnesses for cross-examination remains, subject to control by the magistrate. More significantly, the magistrate no longer has the function of assessing the capacity of the evidence given by the witness to establish the offences charged.
None of those changes, it was submitted, had the effect of rendering the function of the magistrate unconstitutional. Rather, that consequence was said to flow from the fact that the traditional function of assessing the capacity of the evidence to maintain the charges was now conferred on the prosecutor, so that, where the prosecutor had given the relevant certificate, the magistrate was obliged to commit the person for trial.
However, this is not a case where the judicial officer has been enlisted into the executive and given a non-discretionary duty to rubber-stamp a finding by an executive officer. There is now no assessment of the merits of the prosecution case to be made by the magistrate conducting a committal proceeding. An entirely separate obligation is imposed on the prosecutor to provide a certificate stating that he or she has formed the necessary opinion as to the capacity of the evidence to satisfy the elements of the charge. This is, no doubt, seen as a useful exercise to ensure that charges are not laid prematurely or without proper support in the available evidence. The magistrate is not required to assess the merit of the certificate, nor to review the adequacy of the supporting evidence.
The issuing of a charge certificate is one step (a mandatory step) in the pre-trial process leading to a committal for trial or sentence. An important purpose of the charge certificate is to indicate whether any offences charged are no longer to be proceeded with. The case conference procedure is designed to ensure that steps are taken to obtain any pleas of guilty to those charges which are pressed, as appropriate, prior to committal. That process is not required where the accused is unrepresented, or has already entered pleas of guilty: s 69. Otherwise, the magistrate is to fix a time for a case conference and the obligation of the legal representatives is to ensure that the case conference takes place and that a certificate to that effect is filed within the prescribed time.
Accordingly, the pre-trial process now involves the following steps: 1. the filing and service of court attendance notices; 2. the preparation and service of a prosecution brief of evidence; 3. the filing by the prosecutor of a charge certificate (within six months of the first return date for the court attendance notice); 4. holding one or more case conferences, concluding with the filing of a case conference certificate; 5. the examination of any witnesses sought to be called by either party and approved by the magistrate, and 6. committal for sentence or trial, as appropriate, once the preceding steps have been completed.
It is not possible to imply from this statutory scheme any obligation on the part of the magistrate to assess the merits of the prosecution case, nor to assess the correctness or otherwise of the content of the charge certificate. Accordingly, there is no sense in which the Local Court is required or empowered to rubber-stamp a determination by an executive officer as to the merit of the prosecution case.
The applicant's argument is based on the assumption that the earlier function of a committal proceeding (namely the assessment of the capacity of the evidence to support the charges) remained a function following the 2017 Amendment Act. On that assumption, the only scope for an assessment by the magistrate would be if the magistrate were required in some way to assess the merit or validity of the charge certificate. However, the assumption is falsified by the statutory scheme. What had been the primary function of a committal proceeding no longer is so.
It follows that the constitutional challenge to the validity of the scheme in its present form must be rejected. The applicant must pay the costs of the Director, being the active party in this Court.

Orders

The Court should make the following orders: 1. Direct that the applicant file within 14 days an amended summons identifying the Director of Public Prosecutions (NSW) and the State of New South Wales as the first and second defendants. 2. Dispense with the need for service of the summons so amended. 3. Dismiss the summons filed in the Common Law Division and removed into this Court, as amended. 4. Order that the applicant pay the costs of the Director of Public Prosecutions of and incidental to the summons.

Endnotes

To add to the confusion, that nomenclature was used inside the summons, and both forms were used in the notices of appearance.
(1996) 189 CLR 51; [1996] HCA 24.
Criminal Procedure Act, s 47(1).
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017, p 278.
Hansard, p 280.
(1998) 194 CLR 444; [1998] HCA 62 at [11], [33]-[34].
(1989) 168 CLR 1 at 11-12; [1989] HCA 45.
Indictable Offences Act 1848 (UK).
Grassby at 12-13.
Grassby at 14-15.
Director of Public Prosecutions Act 1986 (NSW), s 4.
Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (NSW), Sch 1[43], commenced 7 July 2003.
Grassby at 15.
NSWLRC Report, par 8.33.
NSWLRC Report, par 8.37.
NSWLRC Report, par 8.50.
NSWLRC Report, par 8.52.
NSWLRC Report, par 8.44.
NSWLRC Report, pars 8.161-8.163.
See fn 2 above.
Kable at 104.
Kable at 121.
Kable at 133-134.
Ibid.
J Stellios, Zines and Stellios's The High Court and The Constitution (7th ed, 2022, The Federation Press), p 295.
Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 at [124] (Hayne, Crennan, Kiefel and Bell JJ).
(2011) 243 CLR 181; [2011] HCA 24.
Citations omitted.
(1980) 147 CLR 75 at 100; [1980] HCA 48.
Barton at 103, 104.
Barton at 105.
Barton at 107.
Barton at 109.
(1985) 158 CLR 596 at 616 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ); [1985] HCA 50 (citations omitted).
(2017) 259 CLR 478; [2017] HCA 5.
Palmer at [31]. 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: 21 October 2022

Criminal Procedure Amendment (Justices and Local Courts) Act 2001(NSW)

Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017(NSW)

Justices Act 1902(NSW)

Following the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017(NSW)

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Geoffrey Vance Landrey, has been charged with indictable offences under the Crimes Act 1900 (NSW). On 25 May 2022, the applicant commenced proceedings by way of summons, challenging the Constitutional validity of Ch 3, Pt 2 of the Criminal Procedure Act 1986 (NSW). Chapter 3, Pt 2 governs the procedures and powers of the Local Court in conducting committal proceedings for offences to be prosecuted on indictment. Following the issue of a court attendance notice, the prosecutor must file and serve on the accused a charge certificate certifying that the evidence available to the prosecutor is capable of establishing each element of each offence. If the accused is represented, there must be at least one case conference between the prosecutor and the accused's legal representative, following which, the prosecutor must file a case conference certificate confirming that steps have been taken in relation to possible pleas. Finally, the magistrate must commit the accused person for trial (on a plea of not guilty) or for sentence (on a plea of guilty). The applicant contended that, since amendments to Ch 3, Pt 2 of the Criminal Procedure Act which commenced in 2018, the magistrate is required to rubber-stamp the assessment of the merits of the prosecution case made by the prosecutor. The primary issue before the Court was whether Ch 3, Pt 2 thus contravenes the constraint imposed on State legislative power by Ch III of the Commonwealth Constitution by substantially impairing the institutional integrity of the Local Court. Held (Basten AJA, Ward P and Simpson AJA agreeing), dismissing the summons: (1) The present purpose of committal proceedings is to ensure proper case management of charges for indictable offences. Chapter 3, Pt 2 seeks to ensure that cases are not listed for trial until the possibilities of guilty pleas and challenges to the evidence of prosecution witnesses have been explored and, to the extent possible, exhausted: [31]. (2) Committal proceedings do not involve the exercise of judicial power. It is well-established that powers of case management are ancillary to the judicial function and, accordingly, are constitutionally valid when exercised by the trial court. While committal proceedings in the Local Court are ancillary to proceedings in a higher court, it cannot be said that, in their current form, they substantially impair the institutional integrity of the Local Court. In fact, committal proceedings involve similar steps to those taken in the course of case management in the trial court: [32], [38]. (3) Institutional integrity includes the characteristics of independence, impartiality and fairness. Whether these characteristics have been undermined by State legislation is to be assessed by reference to what courts have traditionally done. Since the traditional view is that a committal proceeding is an administrative process, the question is whether the form of the administrative function is compatible with the judicial functions of the court: [50], [61]. Kable v Director for Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24; Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24; Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48; The Queen v Murphy (1985) 158 CLR 596; [1985] HCA 50; Palmer v Ayres (2017) 259 CLR 478; [2017] HCA 5, discussed. (4) Chapter 3, Pt 2 does not enlist a judicial officer into the executive and require the court to rubber-stamp a finding by an executive officer that there is sufficient evidence to satisfy the elements of the offences. It is not possible to imply from the statutory scheme an obligation on the part of the magistrate to assess the merits of the prosecution case, nor to assess the correctness of the content of the charge certificate. Following the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW), the magistrate does not have the function of assessing the capacity of the evidence to support the charges: [68], [71]-[72].

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