Moore v Director of Public Prosecutions [2021] NSWSC 587 | Case summary

Background

There is no dispute as to the background to the proceedings. In 2019 the plaintiff was charged with the offences of possessing a prohibited weapon without a permit, contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW) and carrying a prohibited item through a screening point, contrary to s 55(3) of the Aviation Transport Security Act 2004 (Cth).
On 14 June 2019 he was found guilty in the Tamworth Local Court. He appealed to the District Court.
On 22 October 2019 McLennan DCJ quashed the conviction for the offence under s 7(1) of the Weapons Prohibition Act. The plaintiff says that there was subsequently a further appeal in respect of the Commonwealth offence.
Subsequent to the determination of those appeals, the plaintiff decided to pursue proceedings against three police officers that were in some way involved in the original charges.
On 15 November 2019 the plaintiff filed an application under s 45 of the Local Court Act 2007 (NSW) naming Matthew Bolton as the respondent. He was the forensic ballistics investigating officer involved in the plaintiff's earlier case.
There was a series of allegations made against Officer Bolton in respect of the evidence in the earlier case. The plaintiff alleged criminal conduct on the part of Officer Bolton.
On 5 March 2020 Officer Bolton filed a notice of motion in the Local Court in an attempt to have the proceedings dismissed, suggesting to the plaintiff, that the proceedings were doomed to fail.
The filing of the motion coincided with COVID issues and the motion and original application filed by the plaintiff appear to have never been determined. This may be because the plaintiff filed Court Attendance Notices in respect of each of the three police officers who he wished to pursue. The Court Attendance Notices required that each of the police officers attend at court on 8 May 2020 in response to the plaintiff's allegations. In other words, the plaintiff had determined to pursue a private prosecution in respect of the alleged criminal conduct of the three police officers.
On 7 August 2020, the acting general counsel for the New South Wales Police Force requested that the Director of Public Prosecutions exercise his powers under s 9 of the DPP Act and take over the prosecution of the matters against the three officers.
In response to that request, on 27 October 2020, the Director informed the plaintiff of the request and allowed the plaintiff an opportunity to make submissions as to what should happen with the proceedings.
The plaintiff responded to that invitation by letter dated 2 November 2020. The plaintiff's response was extensive. The plaintiff opposed the Director taking over the conduct of the prosecution.
Subsequent to the receipt of the plaintiff's response, the Acting Deputy Director Tanya Smith SC, acting as a delegate of the Director, informed the plaintiff that, pursuant to s 9 of the DPP Act, the Director had taken over the matter and that the Director declined to proceed further with the prosecution.
On the same day, the Director informed the Registrar at the Tamworth Local Court of the decision and asked that the matter be removed from the Court list on 12 November 2020.
The matter then came before Magistrate Thompson on 12 November 2020. The plaintiff appeared. After some argument, a solicitor sought leave to appear on behalf of the Director. There followed further argument about what was going to happen, with the plaintiff opposing that which the Director had determined to do.
As part of the argument, the plaintiff submitted to the learned Magistrate that on an earlier occasion a solicitor had appeared on behalf of the Director and indicated that the Director would not be taking over the matter.
There is a reference in the transcript to an earlier appearance. It may be that there is some confusion as to who was appearing at that time. A solicitor, Mr Johnston, appeared on behalf of Officer Bolton.
In any event, after further discussion, the Magistrate made what the plaintiff says was a decision in the following terms: "I allow the Director to take over the proceedings pursuant to s 9 of the DPP Act and in relation to the three proceedings with respect to Matthew Bolton, Michael Rainbow and Jade Woolnough those matters are dismissed and withdrawn due to the Director's direction indicating she declines to proceed further with respect to the prosecutions".
The effect of what occurred is that the proceedings in the Local Court have been brought to an end.
On 11 February 2021, the plaintiff commenced these proceedings. On 4 March 2021 the Director filed the motion.
Both the plaintiff and the defendants have filed extensive and helpful written submissions. Mr Kell made oral submissions in addition to his written submissions. The plaintiff made brief oral submissions emphasising some points important to him, but otherwise relied on his written submissions.

Consideration

The plaintiff seeks to challenge two decisions. The first decision is said to be the decision of Magistrate Thompson "handing the private prosecution over to the Acting Director of Public Prosecutions, Ms Tanya Smith SC".
The second decision is the decision of the Director to take over the plaintiff's private prosecution.
There is a difficulty with the plaintiff seeking to review the decision of the Magistrate. The decision on which the plaintiff seeks review is not really a decision at all.
What the Magistrate was really doing, in suggesting that he would allow the Director to take over the proceedings pursuant to s 9, was merely recording that which the Director had done. The decision to take over the proceedings was the decision of the Director.
It was made pursuant to the power available to the Director under s 9 of the DPP Act.
In saying that he was allowing the Director to take over the proceedings, the learned Magistrate was merely endeavouring to respond to the issues raised by the plaintiff in opposition to that course.
So the first ground for review on which the plaintiff relies must fail because there is no decision made by the Magistrate which is amenable to judicial review.
That ground must also fail because, even if I determined that the Magistrate erred in allowing the Director to take over the proceedings or erred in any of the other ways suggested by the plaintiff, and remit the matter back to the Local Court, all that will happen is that the Director will maintain his position, that is, that he has taken over the matter and elected not to proceed with the matter.
There will be no decision for the new Magistrate, before whom the case comes, to determine. In my view making any orders in respect of the suggested decision of the Magistrate is an exercise in futility.
The plaintiff is really just seeking to challenge the decision of the Director to take over his private prosecution and then elect not to proceed with it.
In some respects, the plaintiff's grievance is understandable, in the sense that, as was his right at the time, he decided to commence a private prosecution. It was then taken over by the Director who elected not to proceed with it.
I hasten to add at this stage that I am not suggesting in any way that there is any merit at all in any of the allegations raised by the plaintiff against the police officers. I am not here to determine that, and indeed, the plaintiff directed my attention to a decision of McWilliam AsJ in Kazolis v Registrar of Firearms [2] , in which her Honour emphasised that the role of the court exercising its judicial review function was not to determine the facts between the parties or the merits of the original proceedings.
I am only pointing out that it seems to me that, having determined to pursue the prosecution, the plaintiff comes to this Court perhaps not quite understanding why the Director elected not to continue with the proceedings. Indeed, as he said in his final submissions, all he really wanted was a more detailed explanation from the Director as to why there was an election not to pursue the proceedings.
Having said that, the application of the defendants must obviously be determined according to proper legal principles rather than merely any sense of grievance on the part of the plaintiff. The issue in this court is not whether the plaintiff might feel aggrieved or might want a further explanation, or indeed, whether there was any merit in the original proceedings.
The real issue on the defendants' application is whether there is any reasonable prospect that the plaintiff might succeed in the proceedings for judicial review which he has commenced or are the proceedings so obviously untenable that they must fail.
In his written submissions, the plaintiff identifies a number of errors.
It is not necessary that I refer to all of his written submissions or all of the alleged errors, because there is no utility in granting judicial review of the Magistrate's decision, if there was any decision.
The main points in relation to the Director appear to be that: 1. the Director failed to comply with s 10 of the DPP Act, in that notice was not given expeditiously and before the next appearance in court. The plaintiff submits that the numerous court listing dates suggest that the Director did not comply with this requirement. He submits that it was only on the tenth mention, on 12 November, that the prosecution was taken over; 2. there was an error of law when the Magistrate handed the prosecution back to the Director, as the legislation does not allow the Director to take a matter back after it has been handed back to the private prosecutor; and 3. the third error of law was the handing over the private prosecution without first assessing if the Director had complied with the necessary requirements.
These submissions appear to relate to both the decision of the Director and the alleged decision of the Magistrate. I will endeavour to deal with them.
In my view, the plaintiff's submission in respect of the Director handing it back to him (point 2) and then purporting to take it over again, shows a misunderstanding of the roles of the various solicitors. The solicitor who originally attended was a local solicitor, Mr Johnston, and was representing Officer Bolton who had been named as a defendant, not the Director.
The submission that the plaintiff made to the Magistrate, to the effect that the Crown Solicitor had previously represented the Director, and in some way had indicated that it would not be involved, was rejected by the Magistrate, who explained to the plaintiff their differing roles.
The original solicitor, Mr Johnston, was merely stating that he would not be involved in the future because the NSW Police Force had engaged other legal representatives to represent Officer Bolton.
As such, the factual premise behind the suggestion that there was an error of law in allowing the Director to take the matter over (when the Director had previously indicated that he would not be doing so) is not made out.
The real issue which requires consideration is whether there can be any challenge to the Director's decision, no matter how it might be asserted by a person in the position of the plaintiff.
The Director submits that, irrespective of any grievance or complaint that the plaintiff might have in respect of the Director's decision, that decision is not amenable to judicial review.
Section 9 of the DPP Act is in the following terms: 9 Taking over prosecutions or proceedings (1) If a prosecution or proceeding in respect of an offence (whether it is an indictable offence or a summary offence) has been instituted by a person other than the Director, the Director may take over the matter and: (a) carry on the prosecution or proceeding, (b) carry on, on behalf of the prosecution or as respondent, an appeal in any court in respect of the offence, (c) institute and conduct, on behalf of the prosecution, an appeal in any court in respect of the offence, and (d) conduct, as respondent, an appeal in any court in respect of the offence. (2) The Director may not take over a matter under this section involving a summary offence, unless: (a) the offence is a prescribed summary offence, or (b) a person otherwise responsible for the matter has consented in writing. (3) Except as provided by subsection (2), the Director may take over a matter under this section whether or not the person otherwise responsible for the matter consents. (4) If the Director takes over a matter under this section: (a) the Director shall, as from the time when the Director complies with section 10 (1) in relation to the matter, be deemed to be the prosecutor in connection with the prosecution or proceeding concerned, and (b) the Director may decline to proceed further in the prosecution or to carry the proceeding further. (5) For the purposes of this section, proceeding includes any application, appeal or other proceeding commenced under Division 1A of Part 3 of the Confiscation of Proceeds of Crime Act 1989.
Plainly, having regard to s 9(1) and 9(3), the Director may take over the prosecution whether or not the person otherwise responsible for the matter consents.
Further, as set out in s 9(4)(b), the Director may decline to proceed further in the prosecution or to carry the proceedings further. In this matter, the Director has declined to proceed further with the prosecution.
In any event, contrary to the plaintiff's submissions, the Director did not take over the matter and then hand it back to the plaintiff.
Nor did the Director fail to comply with s 10. Section 10 sets out the procedure which the Director must follow, if the Director decides to take over a matter in accordance with s 9.
The plaintiff submits that the Director did not comply with s 10 because the matter had been before the Court on a number of occasions before the Director decided to take it over. The problem with that submission is that the Director only decided to take it over shortly before notice was given to the plaintiff as the prosecutor at the time and given to the Court.
Indeed, the Director through his delegate made a decision to take it over on 11 November 2020 and informed both the plaintiff and the Court on the same day. There is no merit in any suggestion of a failure to comply with s 10.
The point raised generally in this matter is the same point as was considered in Hanna v Director of Public Prosecutions (NSW) [3] . In Hanna, James J held: "In my opinion, the Director of Public Prosecutions is a prosecuting authority and the power of the Director of Public Prosecutions under s9(1) of the Director of Public Prosecutions Act to terminate a prosecution which has been instituted by a person other than the Director and the power of the Director of Public Prosecutions under s9(4)(b) of the Act to decline to proceed further in a prosecution which he has taken over are each powers falling within the discretionary powers of the Director as a prosecuting authority and decisions made by the Director of Public Prosecutions in the exercise of those powers are insusceptible of judicial review by the courts…" [4]
I am not aware of any decision which is contrary to his Honour's observations. Indeed, his Honour's observations were approved by the Court of Criminal Appeal in R v Gent [5] : "… Decisions made in the exercise of prosecutorial discretion are not readily subjected to review or appellate scrutiny by the courts: Maxwell v R (1995) 184 CLR 501 at 512, 534; Hanna v Director of Public Prosecutions [2005] NSWSC 134..."
More importantly, there have been a number of High Court cases in which the Court has reviewed or considered whether there is any power to review the making of an election by a prosecutor.
In Maxwell v The Queen [6] , Gaudron and Gummow JJ said: "The power of the Attorney-General and of the Director of Public Prosecutions to enter a nolle prosequi and that of a prosecutor to decline to offer evidence are aspects of what is commonly referred to as 'the prosecutorial discretion'. In earlier times, the discretion was seen as part of the prerogative of the Crown and, thus, as unreviewable by the courts. That approach may not pay sufficient regard to the statutory office of Director of Public Prosecutions which now exists in all States and Territories and in the Commonwealth. Similarly, it may pay insufficient regard to the fact that some discretions are conferred by statute…. It ought now be accepted in our view that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what."
More recently in Likiardopoulos v R [7] , the Court again commented on the power to review the decision of a prosecutor, in circumstances such as this. Whilst French CJ, [8] raised a question as to whether it could really be said that the exercise of any statutory power was immune from judicial review, his Honour ultimately agreed with the majority, who said as follows: [9] "The appellant maintained that it was unfair that the Crown should be permitted to advance a case at his trial that the principal offenders were persons from whom it had chosen to accept pleas of guilty to lesser offences. The Director's acceptance of the proffered pleas of guilty involved an exercise of prosecutorial discretion. As Gaudron and Gummow JJ explained in Maxwell v The Queen, the independence and impartiality of the judicial process would be compromised if courts were perceived to be in any way concerned with who is to be prosecuted and for what. For this reason, their Honours considered that certain decisions involved in the prosecution process are insusceptible of judicial review….."
In Walsh v Director of Public Prosecutions [10] Hansen J observed that the decision of the Director to take over the conduct of the proceedings, and a decision to discontinue the proceedings, is not open to judicial review. As his Honour said, the reason is that such decisions are decisions made in the prosecutorial process and are not susceptible to judicial review.
In the circumstances, the decision on which the plaintiff seeks judicial review, being the decision of the Director to take over the matter and then discontinue it, is not amenable to review in the circumstances of this case.
As observed by Mr Kell, it may be that there could be some circumstances, such as fraud or similar type circumstances, where there could be review, but having regard to the well-established principles to which I have referred, the plaintiff's claim for a review of the decision of the Director is doomed to fail.
In my view it is so untenable that it has no prospects of success. As there is no utility in remitting the matter back to the Local Court and as the plaintiff's attempt to review the decision of the Director cannot succeed, I am satisfied that the proceedings should be dismissed.
In the circumstances, I make the orders sought in the motion: 1. Firstly, I make orders correcting the names of the defendants. I order that the current first and second defendants to the proceedings are removed and that the Director of Public Prosecutions (NSW) be joined as the defendant; 2. Secondly, I make an order dismissing the proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005; and 3. In circumstances in which the plaintiff has been unsuccessful, I order that the plaintiff pay the costs of the Director of Public Prosecutions (NSW) in respect of the motion and the proceedings.

Moore v Director of Public Prosecutions

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