By summons filed on 28 September 2015 the plaintiff purported to seek leave to appeal from an "interlocutory order" pronounced by Deputy-Chief Magistrate O'Brien of the Local Court on 1 September 2015. The appeal was instituted under s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) (Appeal Act).
The plaintiff sought to challenge his Honour's decision under s 263(2) of the Criminal Procedure Act 1986 (NSW) extending the time for the defendant to elect to proceed by way of indictment rather than summarily.
An amended summons was filed pursuant to directions made by the Registrar on 27 November 2015. Again, the title page to the amended summons described the matter as an appeal.
It is fair to say that the form of orders claimed in both the summons and the amended summons could pass as a claim for orders in the nature of certiorari. However, looking at each of the summons and the amended summons as a whole, and giving them a fair reading, it is difficult to understand them as other than summonses purporting to comply with the requirements of the Rules relating to the institution of appeals.
I should interpolate that Mr Ayache, solicitor, who appears for the plaintiff, explained when the matter was called on for hearing today that, in instituting the proceedings, he was relying upon my decision in Hall v Director of Public Prosecutions [2015] NSWSC 839, to the effect that a grant of leave under s 263(2) was an operative judicial act as the authorities define the expression interlocutory order for the purpose of s 53 of the Appeal Act.
In her written submissions, Ms Mitchelmore of counsel challenged the competency of the appeal. I interpolate that she informs me from the bar table that at some earlier point in time her instructing solicitor in correspondence raised the same challenge. However, Ms Mitchelmore argues that my previous decision is wrong, indeed plainly wrong, by reference to a subsequent decision of the Court of Criminal Appeal in Hall v R [2015] NSWCCA 298. As a matter of interest, that was an appeal brought under s 5F of the Criminal Appeal Act 1912 (NSW) from the decision of the Local Court in the same matter decided by me but on remitter.
Osman v Director of Public Prosecutions [2016] NSWSC 959 | Case summary | Zoe
Looking at the question of whether that subsequent decision also granting leave to proceed by indictment was an interlocutory decision for the purpose of s 5F, the Court of Criminal Appeal referred to my decision, acknowledging the possible difference in the legislation, and by reference to the decision in Salter v Director of Public Prosecutions (NSW) [2009] NSWCA 357; 75 NSWLR 392 at [12]-[15] held that the decision of the magistrate in that case was not an interlocutory order for the purpose of s 5F.
That decision is necessarily inconsistent with my decision, in as much as the Court of Criminal Appeal accepted the submission advanced by the Director in that case that the order "was not an operative judicial act, but rather the magistrate did no more than answer a preliminary question without commanding anything more to be done" at [36] (per Johnson J, with Simpson and Davies JJ agreeing).
That part of Johnson J's reasoning is not part of the ratio decidendi of the Court's decision because his Honour identified "a more fundamental difficulty", and that was that the decision of the magistrate, even if it had been an interlocutory order, was not made in committal proceedings for the purpose of s 5F: at [37].
However that may be, it is obvious to me when I consider the decision of the Court of Criminal Appeal, that the obiter dictum disagreeing with my decision falls into the category of "considered dicta" of an intermediate appellate court by which I am bound. Although I have not heard full argument about the matter, it seems almost inevitable that I would hold that my previous decision was wrong and follow the different approach of the Court of Criminal Appeal.
I have set all this out at some length as important context because today Mr Ayache sought leave to file a second amended summons in court. That second amended summons makes clear that the plaintiff wishes to seek judicial review of the decision of the Local Court. On its face the words "judicial review" have been added to the description of the nature of the proceedings. The words which follow are the same as in the original, including the maintenance of the word "appeal".
When developing his argument as to why leave should be granted to proceed on the second amended summons, Mr Ayache pointed out that, as I have said, the proceedings were instituted on reliance of my decision, and he was not aware of that the Court of Criminal Appeal's subsequent decision would be relied upon until he received Ms Mitchelmore's submissions which were filed in court on 20 June 2016.
It appeared to me that, with respect, he seemed to accept that the Court of Criminal Appeal's decision was a formidable obstacle in the path of any proposed appeal, and when pressed, elected to proceed in the Court's supervisory jurisdiction only.
Ms Mitchelmore pointed out some procedural difficulties in that regard. First, the Local Court has not been named as a party, even though it is inevitable, in accordance with the virtually invariable practice that it would, through the Crown Solicitor's office, file a submitting appearance. The failure to name it as a party seems to me to be a fundamental defect in the constitution of the proceedings as proceedings for judicial review. This defect, in my opinion, would need to be corrected before the matter proceeded to hearing.
The second matter raised by learned counsel was that, although the second amended summons purports to comply with the requirements of r 59.4 Uniform Civil Procedure Rules 2005 (NSW), it fails to specify whether the grounds relied upon are in each case said to be instances of jurisdictional error on the one hand, or error of law on the face of the record on the other, a matter which is potentially of vital importance in the proceedings, at least in my view, having regard to the provisions of s 17 of the Supreme Court Act 1970 (NSW).
I acknowledge that it is highly desirable that these proceedings are determined expeditiously because the practical effect of the commencement of proceedings in this Court is that the progress of the prosecution in the Local Court, while not stayed, is effectively stalled. I am informed, however, that the plaintiff is on conditional liberty.
Notwithstanding that important consideration, and bearing in mind the Court's reluctance to fragment criminal proceedings by entertaining applications for judicial review of interlocutory orders or decisions, it seems to me that the matter could not properly proceed until the Local Court is joined and the summons is otherwise regularised in the manner I have indicated.
In the circumstances, the usual approach would be to simply adjourn the matter to the general list to be relisted in accordance with the Court's normal procedures. However, given the desirability of the matter being dealt with sooner rather than later, and at the same time allowing sufficient time for the initiating process to be regularised, I have decided, at the request of the parties, that the better approach is to adjourn the matter and list it for hearing before me as I have some familiarity with the issues, not only from having read the file, but from having heard the parties' arguments today.
I think that can be conveniently done during the week when I am next rostered as duty judge, which is the week commencing 29 August, and I propose to adjourn the matter for hearing before me during that week.
Ms Mitchelmore sought the costs thrown away by reason of the adjournment, which on the face of it seems reasonable, but Mr Ayache opposes such an order. I have drawn the parties' attention to r 50.16A which is relevant to the costs application, and given that I will be hearing the case on the next occasion, I have decided to reserve those costs to give the defendant an opportunity to file any affidavit that the defendant considers appropriate in relation to its costs application.
I did not understand the defendant to oppose the plaintiff having leave to proceed as on judicial review instead of on appeal, provided the defendant had a reasonable opportunity to reconsider the case as recast.
For these reasons, my orders are:
1. Adjourn the matter for hearing before me at 2pm on Tuesday 30 August 2016;
2. Grant leave to the plaintiff to file a second amended summons within 14 days joining the Local Court as a second defendant and stating the grounds on which judicial review is sought, specifying in respect of each ground whether it is alleged to be either jurisdictional error or error on the face of the record or both;
3. Costs thrown away by reason of the adjournment are reserved.
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Decision last updated: 08 July 2016