Lazarus v Director of Public Prosecutions NSW

Court of Appeal (NSW)|2016-03-14|Before: Basten JA, Ward JA, Ms J, Garling J

Solicitors: Aquila Lawyers (Applicant) Solicitor for Public Prosecutions (First Respondent) Lea Armstrong, Crown Solicitor (Second Respondent) File Number(s): CA 2015/279723 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2015] NSWSC 1116 Date of Decision: 21 August 2015 Before: Garling J File Number(s): 2015/55904

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

BASTEN JA: The applicant, Michelle Lazarus, seeks leave to appeal from a judgment of Garling J in the Common Law Division dismissing with costs Ms Lazarus' amended summons dated 23 March 2015.
The amended summons was brought in the Court's supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW), seeking judicial review of a judgment of Magistrate Barnes finding her guilty of 7 counts of giving false or misleading evidence, contrary to s 87 of the Independent Commission Against Corruption Act 1988 (NSW) ("the ICAC Act"). The offences related to evidence given at a compulsory examination before the ICAC on 12 July 2010 and at a public hearing on 21 February 2011.
Ms Lazarus was represented by counsel during the Local Court hearing. She appeared without legal representation before Garling J and when she instituted the present application. She has been represented today by counsel and a solicitor.

Local Court decision

In the Local Court Ms Lazarus objected that the commencement of the prosecutions was invalid because the court attendance notices (CANs) by which the proceedings were commenced had been issued by an officer of the ICAC. The magistrate (Barnes LCM) rejected the objection.
Ms Lazarus was convicted and sentenced to 4 months' imprisonment on count 1 and five months imprisonment on counts 2 to 7 to be served concurrently, but consecutively following the term for count 1. Both terms of imprisonment were suspended (under s 12 of Crimes (Sentencing Procedure) Act 1999 (NSW)) on condition that Ms Lazarus enter into a good behaviour bond.
She filed an appeal in the District Court pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW). The appeal has not yet been heard. The hearing of that appeal was initially listed for 23 February 2015, but was then adjourned until 16 November 2015. That hearing date was subsequently vacated and the matter stood over for mention before Zahra DCJ on 18 January 2016. The matter is still pending in the District Court.

Authority of informant to commence prosecution

There were numerous grounds of review set out in Ms Lazarus' amended summons and the submissions in support; these were dealt with by the primary judge in four categories, of which it is only necessary to mention one - which addressed grounds 1 and 2 of the review grounds. These were directed to the legality of the prosecution for an offence against s 87(1) of the ICAC Act.
Garling J also referred, after dismissing the grounds of challenge, to discretionary considerations. He said that even had he been persuaded that there was a ground, or grounds, sufficient to enliven the discretion of the court to grant relief by way of an order in the nature of certiorari, he would not have granted relief. This was on the basis that there was a full right of appeal from a decision of the Local Court to the District Court; that right of appeal had been engaged by an appeal lodged by the applicant; and that appeal provided an equally effective and convenient remedy for the matters she sought to raise before him.

Proposed appeal grounds

In dealing with the grounds which are presently relevant, the judge noted that the applicant had two arguments, set out at [48]-[92]. The first was that s 87 of the ICAC Act did not create an offence at law. That ground was abandoned in submissions which were received by the Court this morning. Her second point was that the CANs had not been validly issued by the officer of the ICAC who had in fact issued them. This is one of two points which are now pursued on the appeal.
In respect of the procedural point, and dealing with authority of an informant to issue a CAN, the primary judge set out the background to the proceedings at [64]-[75]. He accepted that the Director of Public Prosecutions had taken over the prosecution, as he was entitled to do, and held it was therefore a valid prosecution: at [76]-[78]. However, the applicant had contended that if the prosecution were not validly commenced, the action of the Director would not validate it. It is not necessary to determine whether that is so, if in fact the prosecution was validly commenced. The primary judge went on to explain why the prosecution had been validly commenced by an officer employed by the ICAC: at [80]-[85].
Although there was no plausible error in his reasoning identified in the documents filed by the applicant when acting for herself, counsel appearing for her at the hearing of the application has filed further written submissions which were expanded upon in the course of oral argument. With respect to the point raised before Garling J, counsel submitted that the source of the power of an informant to issue a CAN could not derive from the Criminal Procedure Act 1986 (NSW) and the regulation under it, but, pursuant to s 14 of that Act, was required to be found in the ICAC Act. He challenged the finding of the primary judge that "the ICAC Act is entirely silent on that question." Section 14 is in the following terms: 14 Common informer 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.
The ICAC Act was indeed silent on the question identified in s 14 of the Criminal Procedure Act; it did not restrict the right to commence a prosecution by expressly conferring the power on a specified person or class of persons. At least it did not do so at the date when these proceedings were commenced. The applicant placed reliance on the functions conferred on the ICAC by s 53 of the ICAC Act. However that reliance was misconceived. That section deals with the matter being investigated, not an incidental prosecution, as in the present case, for an offence against Pt 9 of the ICAC Act. Similarly, reliance on provisions in the ICAC Act limiting the power of the Commission to refer a matter to another body and make recommendations that a person should be prosecuted for a criminal offence (ss 13(4) and 70(4B) were referred to) were also directed to the investigatory function of the Commission and did not deal with offences under Pt 9.
For the same reason, the applicant's reliance on Balog v Independent Commission Against Corruption (1990) 169 CLR 625 was beside the point. It may be noted that the legislative regime which operated when Balog was decided has long ago been significantly amended.

Challenge to validity of investigation

Because no error has been identified in the reasoning of the primary judge, it is not necessary to consider whether, as a matter of discretion, leave to appeal should be granted. It is however necessary to deal with a fresh matter raised by counsel today for the first time. That matter involved a challenge to the validity of the investigation by the Commission which gave rise to the charges of which the applicant was convicted, not for offences revealed by the investigation but as a result of her conduct in the course of the investigation.
The invitation to address this matter for the first time on appeal should be declined. There are a number of questions which would arise if that matter were to be addressed. First, there would be a question as to whether what has been determined to be a limitation on the powers of the Commission in Independent Commission Against Corruption v Cunneen [2015] HCA 14; 89 ALJR 475 would affect the validity of the charges laid for giving false or misleading evidence to the Commission.
Secondly, there would be a need to investigate the effect of the Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW). There would, as counsel for the applicant expressly noted, be a question as to the proper construction of Sch 4, Pt 14 of the current Act, where the transitional provisions are now to be found. There might also be an issue as to the application of the principles identified in Lodhi v Regina [2006] NSWCCA 121; 199 FLR 303 as to the retrospectivity of such legislation in respect of criminal offences.
For these reasons it would be entirely inappropriate for this Court to grant leave to the applicant to raise such matters for the first time at this stage of the proceedings.

Discretion to refuse relief

Although the application must be refused, it is appropriate to note that there was a lively discretionary issue before the primary judge, had he been of the view that error had been committed. The applicant not only had a right of appeal to the District Court, but had exercised that right.
There is a potential abuse of process in pursuing both an appeal to the District Court and a challenge to the decision of the Local Court in the Supreme Court simultaneously. According to conventional reasoning, as identified in Wishart v Fraser (1941) 64 CLR 470, a decision of the District Court on appeal would supersede the orders of the Local Court. The factual issues should have been determined before the legal challenges were raised in the supervisory jurisdiction of the Supreme Court, which is not to say that the legal challenges could not have been raised in the District Court. Although there is no appeal from the District Court, the applicant has a right of review in this Court of any judgment of that Court on appeal from the Local Court.
It is well-established, as the primary judge noted, that the failure to seek or pursue an appeal to the District Court may result in relief being refused by the Supreme Court in the exercise of its supervisory jurisdiction. It was at least open to the primary judge to consider the question of discretion as an initial matter and, if thought appropriate, to refuse to allow the matter to proceed to a hearing unless the applicant withdrew her appeal to the District Court. Indeed, the necessary extension of time to pursue these proceedings could properly have been refused on that basis. The result of the present proceedings is that, almost two years after her convictions in the Local Court, there are issues as to the correctness of those convictions which remain unresolved. Nor are these matters merely of history. The fact that the present application sought to raise a swathe of fresh issues, the answers to which will not be obvious without further and careful investigation, suggests the inappropriateness of the course which has been taken so far and the need to avoid continuing along the same course.
However, it is not necessary to deal with the matter on that basis. The proper course is for this Court to refuse leave to appeal from the judgment of Garling J. The applicant should pay the respondent's costs in this Court.
WARD JA: I agree with Basten JA that the application for leave to appeal should be refused with costs for the reasons that his Honour has given.

Amendments 18 March 2016 - Coversheet - correcting typographical error 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: 18 March 2016

Independent Commission Against Corruption Amendment (Validation) Act 2015(NSW)

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