Supreme Court of Victoria|2005-03-23|Before: HABERSBERGER, J

CRIMINAL LAW - Practice and Procedure - Application for extension of time for the Director of Public Prosecutions to make and file presentment against accused granted by County Court Judge at the commencement of the trial - Presentment not invalid - Application for judicial review refused - Section 353 of the Crimes Act 1958.

2 The plaintiff is a former solicitor who apparently conducted a conveyancing business at the time of the alleged offences. He was charged with several offences of obtaining financial advantage by deception and obtaining property by deception contrary to ss.81 and 82 of the Crimes Act 1958 ("the Act").

3 This proceeding, which was commenced by originating motion on 18 January 2005, was not the first between the plaintiff and the second defendant, the Director of Public Prosecutions ("the Director"). On 14 January 2005 Gillard J had made an order restraining the Director from prosecuting Mr Lo Presti on the presentment made and filed with the County Court on 18 February 2004, unless the time for making and filing was extended by the County Court.[1]

4 Gillard J held that the presentment had not been made within the time limited by s.353(2) of the Act and reg. 6 of the Crimes (Procedure) Regulations 1994 ("the Regulations"), namely "six months from the date of committal" or such extended period of time as ordered by the County Court pursuant to s.353(5) and (6) of the Act. Mr Lo Presti had been committed for trial on 6 May 2003 and, accordingly, the making of a presentment should have occurred on or before 6 November 2003. However, at a hearing before Judge Nixon on 24 August 2003, his Honour had granted an extension of time for the filing of a presentment until 1 February 2004. At a further hearing on 18 February 2004, Judge Nixon had fixed the trial to commence on 3 August 2004. Gillard J held that the presentment made against Mr Lo Presti was not made until the hearing on 18 February 2004 and therefore that, in the absence of any extension of time, that presentment was made to the Court contrary to the provisions of the Act.

5 On 3 August 2004 Chief Judge Rozenes had vacated the trial date and on 10 August 2004 re-listed the trial to commence on 17 January 2005. Pursuant to the judgment of Gillard J, on that day counsel for the Director, Mr Johnston, sought at the commencement of the trial an order that the time for the Director to make presentment against Mr Lo Presti be extended to 17 January 2005 and an order that the time within which the trial of Mr Lo Presti commence be extended to 1 February 2005. Mr Lo Presti opposed the application. He was by this stage representing himself, having terminated his instructions to Legal Aid Victoria and counsel on the previous day. Judge Anderson rejected the accused's submissions and made the orders sought by the Director. His Honour subsequently rejected an application by Mr Lo Presti that the trial be adjourned to 1 February 2005, although it was stood over to allow this application to be made to this Court as a matter or urgency.

6 It was pointed out by Gillard J, in his judgment in respect of Mr Lo Presti's prior application, that this Court's jurisdiction to review a decision or order of a County Court Judge is concerned with the jurisdiction of that Court to make the order in question or with whether there has been some error of law in the decision making process. The judicial review procedure under Order 56 of the Supreme Court (General Civil Procedure) Rules 1996 is not concerned with the merits of the decision under review. It is not an appeal on the facts. As the High Court of Australia said in Craig v South Australia[2] the established grounds of such a review are:

"jurisdictional error, failing to observe some applicable requirement of procedural fairness, fraud and 'error, or error of law on the face of the record'."[3]

7 The plaintiff's application was supported by an affidavit sworn by Mr Lo Presti on 18 January 2005. Exhibited to that affidavit were Gillard J's reasons for judgment, his order made on 14 January 2005, the transcript of the hearing before Judge Anderson on the morning of 17 January 2005 and his Honour's unrevised reasons for his ruling that the time for the Director to make presentment against Mr Lo Presti be extended to 17 January 2005 and that the time within which the trial of Mr Lo Presti commence be extended to 1 February 2005.

8 Mr Lo Presti again represented himself at the hearing before me. He first submitted that the power to extend the time for the making of the presentment only related to the original period of six months from the date of committal (reg. 6 of the Regulations) and not to any extended period. In my opinion, this submission cannot be correct given that s.353(6) of the Act contemplates that more than one extension of time may be granted. This situation could not occur if it was only the original period of six months from the date of committal which could be extended. I therefore reject the plaintiff's first ground of complaint.

9 Mr Lo Presti next submitted that the procedure adopted by Judge Anderson was irregular and caused him "severe prejudice" in that the prosecutor did not support his application with any evidence other than the reasons for judgment of Gillard J and that he, the accused, was given inadequate notice of the making of the application and that it was brought on without any affidavit material explaining why the Director had not made and filed the presentment within time. Again, in my opinion, the provisions of s.353 of the Act make it clear that this submission cannot succeed. Section 353(6A) permits the application to be made orally and sub-section (6B) permits the application to be made without any material being filed in support. Further, as Mr Lo Presti himself pointed out to Judge Anderson, he had raised the point about the presentment being out of time at the hearing before Chief Judge Rozenes on 10 August 2004. He was therefore familiar with the issue. Moreover, it was quite clear from what Gillard J said in his judgment that he anticipated that the Director would make application to the County Court Judge, at the commencement of the trial, to extend time. Despite being specially asked by the trial Judge, Mr Lo Presti could point to no prejudice which he would suffer if the Director's application were granted. I therefore reject the plaintiff's second ground of complaint.

10 Mr Lo Presti further submitted that the time for the filing and making of the presentment having elapsed, there was no longer any presentment in existence and that if the Director wished to proceed with the prosecution a Magistrate would have to commit him to stand trial again. He submitted that all of the steps already taken leading up to this trial would have to be repeated, even though he could not point to any future step that would in any way be different to what had already occurred. Despite the farcical consequences of his submission, Mr Lo Presti argued that this was what the law required. In my opinion, this submission was not correct. As Gillard J stated in his judgment in respect of Mr Lo Presti's prior application:

"It follows that, in my opinion, the presentment made against the plaintiff and upon which he will be tried next week, was made to the court contrary to the provisions of s.353(2) of the Act. Because the provisions of the Act have not been complied with, in my opinion, the making of the presentment has not occurred and the criminal proceeding against the plaintiff has not been validly continued in the County Court ... The presentment is not invalid ... but the proceeding has not been validly continued because of the failure to make presentment as required by s.353(2) within time. But it does not follow that the proceeding is devoid of all legal effect. The presentment is valid but the making was not in accordance with the legal requirements specified in s.353. The section permits extension of the time limit in s.353(2) and if this is granted the criminal proceeding can continue."[4] [References to cases omitted]

11 The decision of Ormiston J (as his Honour then was) in R v Harris (No. 1)[5] also supports this conclusion. His Honour's statement that the provisions of sub-sections (2) to (6) of s.353 of the Act were merely procedural and that it was "clear that no absolute right to stay a prosecution arises when the period expires"[6] presupposes that the out of date presentment is not a nullity. I therefore reject the plaintiff's third ground of complaint.

12 Finally, Mr Lo Presti submitted that the refusal by Judge Anderson of his application for an adjournment of the commencement of the trial for a few days on the grounds that he was unrepresented and unwell was a denial of procedural fairness. As I have said, the transcript of the previous morning's hearing before Judge Anderson was before me. This showed that his Honour, apart from giving Mr Lo Presti every opportunity to make his submissions, twice adjourned the hearing, once so that Mr Lo Presti could be given a copy of the presentment which Mr Johnston sought to file and once so that a solicitor from Legal Aid Victoria could bring Mr Lo Presti's file to Court. There was no transcript of his Honour's ruling in the afternoon refusing the adjournment application and no reference to it in Mr Lo Presti's affidavit. One can only surmise that the long history of delay referred to by Mr Johnston in his submissions to Judge Anderson, the lack of medical evidence and the recent termination of the services of Legal Aid Victoria and of the counsel briefed by it on behalf of Mr Lo Presti were matters that counted against granting the adjournment. Certainly, there was no evidence before me which suggested that his Honour had erred in refusing to adjourn the trial.

13 Moreover, Mr Johnston in his submissions referred to the desirability of avoiding unjustified fragmentation of the criminal process. This principle is well established. In Anderson v Attorney-General for New South Wales[7], a case involving the legality of an indictment, Kirby P said:

"The jurisdiction of the court to make a declaration of the law applicable to the indictment against the claimant was not disputed by the Attorney-General. However, the Court's disinclination to do so in criminal cases, particularly in circumstances where proceedings are in the charge of a judge who at this very moment is beginning the trial, has been frequently stated. Courts such as this will limit their intervention to special cases. They will intervene only in the 'most exceptional' circumstances: see Gibbs ACJ in Sankey v Whitlam (1978) 142 CLR 1 at 25, or for 'some special reason' (ibid, Mason J at 82); see also Bacon v Rose [1972] 2 NSWLR 793 at 797; Bourke v Hamilton [1977] 1 NSWLR 470 at 479; Barton v The Queen (1980) 147 CLR 75 at 104 and Lamb v Moss (1983) 49 ALR 533 at 545."[8]

14 This passage was quoted with approval by the Full Court of this Court in Rozenes v Beljajev[9] when considering the question of whether it would be appropriate to grant declaratory relief in respect of a ruling on evidence made by a trial judge prior to the commencement of a trial. In a joint judgment, Brooking, McDonald and Hansen JJ said:

"In the criminal jurisdiction an important consideration will be the need to observe and not fragment the ordinary, and orderly, process of a committal or trial. That consideration would apply with particular force 'where proceedings are in charge of a judge who at this very moment is beginning the trial': Anderson v Attorney-General for New South Wales (1987) 10 NSWLR 198 at 200 per Kirby P. Such fragmentation should be avoided unless there are exceptional or special circumstances. It is sufficient to refer in this context to Sankey; R. v Iorlano (1983) 151 CLR 678; Lamb v Moss and Brown (1983) 76 FLR 296; Yates v Wilson (1989) 168 CLR 338; Beljajev v Director of Public Prosecutions (1991) 173 CLR 28; Harland-White v Gibbs [1993] 2 VR 215; Re Rozenes; Ex parte Burd (1994) 68 ALJR 372. These considerations apply whether the application be for a declaration or other form of judicial review such as relief in the nature of certiorari."[10]

See also Director of Public Prosecutions v Denysenko[11] and Atlas v Director of Public Prosecutions[12].

15 There is nothing exceptional or special about the circumstances of this case. Moreover, it is one "where proceedings are in charge of a judge who at this very moment is beginning the trial ..."[13] I am, therefore, not persuaded that there is any reason to uphold Mr Lo Presti's final submission.

16 As I have reached the conclusion that there is no merit in any of Mr Lo Presti's submissions, I do not have to consider the difficult question of whether any of them would have resulted in the further conclusion that there had been a jurisdictional error on the part of the County Court Judge rather than an error within jurisdiction.

17 Accordingly, the application is dismissed with costs.

[1] Lo Presti v County Court of Victoria and Another, Unreported, 14 January 2005, Gillard J
[2] [1995] HCA 58; (1994) 184 CLR 163
[3] [1995] HCA 58; (1994) 184 CLR 163 at 175-176 per Brennan, Deane, Toohey, Gaudron and McHugh JJ
[4] Lo Presti v County Court of Victoria and Another, Unreported, 14 January 2005, Gillard J at p.17
[5] [1990] VicRp 26; [1990] 1 VR 293
[6] [1990] VicRp 26; [1990] 1 VR 293 at 299
[7] (1987) 10 NSWLR 198
[8] (1987) 10 NSWLR 198 at 200
[9] [1995] VicRp 34; [1995] 1 VR 533
[10] [1995] VicRp 34; [1995] 1 VR 533 at 571
[11] [1998] 1 VR 312 at 316 per Brooking JA, with whom Tadgell JA and Hedigan AJA agreed
[12] [2001] VSC 209; (2001) 3 VR 211 at 216-217 per Bongiorno J
[13] Anderson v Attorney-General for New South Wales (1987) 10 NSWLR 198 at 200 per Kirby J