It is readily apparent that there is a considerable overlap between a number of the grounds
Nature of the Court's jurisdiction
18 I have already referred to the relief which the plaintiff seeks. In approaching the matter, I have had due regard to the observations of McClellan CJ in CL in Steele v DPP (NSW) and Anor (2007) 186 A Crim R 1 in which his Honour said:
The plaintiff claims relief by way of an appeal pursuant to s 53(3)(a) of the Crimes (Appeal and Review) Act 2001 NSW and also seeks prerogative relief. Section 53(3)(a) provides for an appeal to this Court by a person against whom "an order has been made by a magistrate in relation to the person in any committal proceedings." However, such appeal is only available with leave and is confined to a question of law alone.
Prerogative relief is also available in relation to committal proceedings. However, in a number of decisions this Court has been careful to confine the circumstances in which relief may be granted. If, as is the position in the present case, the committal proceedings have not come to a conclusion, the court is being asked to intervene at an early stage of criminal proceedings when no decision which might ultimately affect an accused person has been made. Even if the magistrate determined that a committal is appropriate, the Director of Public Prosecutions must find a bill. If that occurs there will be further opportunity for the trial Judge to remedy any injustice which is alleged to have occurred and which may impact upon a fair trial.
I recently considered these difficulties in Nanevski v Haskett [2006] NSWSC 1114. In my judgment I said:
As I have indicated the plaintiff claims relief pursuant to s 55(3)(a) of the Crimes (Local Courts Appeal and Review) Act 2001 and for that purpose seeks leave pursuant to s 54(1) of the Act. Although the matter was not fully debated before me it would seem that there are significant questions as to whether relief is available under this section. The relevant appeal is that provided by s 53(3)(a) which provides that a person "against whom ... (a) an order has been made by a magistrate in relation to the person in any committal proceedings" may appeal, with leave, to the Supreme Court. To my mind no relevant order has been made. The magistrate has declined to require certain persons to attend for cross-examination but this would not qualify as an order in relation to the person in committal proceedings: see R v Colby (1995) 84 ACrimR 125 at 128 (per Gleeson CJ) and Director of Public Prosecutions (NSW) v Scheibel (2004) 145 ACrimR 576 at 584-585.
An appeal with leave is only available "on a ground that involves a question of law alone." The present case involves a challenge to the exercise by the magistrate of a discretion provided in her by the statute.
It is submitted that the discretion miscarried. A number of reasons for that submission are advanced which not confined to allegations that the magistrate erred in law. In effect the decision is sought to be reviewed on its merits. In these circumstances leave must be refused to bring an appeal pursuant to the Act.
I admit to some diffidence in otherwise considering the plaintiff's application. When the legislature has provided a statutory but limited right of appeal in relation to committal proceedings in my opinion this Court should be reluctant to utilise its prerogative powers to intervene. The fact that such powers are available cannot be doubted (Sankey v Whitlam [1977] 1 NSWLR 333 , Waterhouse v Gilmore (1988) 12 NSWLR 270 ). The position was comprehensively considered by O'Keefe J in O'Hare v Director of Public Prosecutions (NSW) [2000] NSWSC 430 at [54] ff where, although the jurisdiction of this Court to make orders in the nature of mandamus and grant declarations was confirmed, his Honour was careful to emphasise the significance of the discretionary considerations which arise. His Honour at [63] referred to the decision of Street CJ in Eq in Bacon v Rose [1972] 2 NSWLR 793 :
In Bacon v Rose Street CJ in Eq (as he then was) considered the declaratory power of the court in relation to committal proceedings before a Magistrate in cases in which the prerogative writs of prohibition and certiorari do not apply, as was determined to be the situation in Ex parte Cousens; Re Blacket (1946) 47 SR (NSW) 145 (per Jordan CJ). Street CJ in Eq held (at 796) that:
There is no basis upon which it can be successfully contended that the declaration presently sought lies beyond the jurisdiction of the Court. The important question is to determine whether, as a matter of discretion, the plaintiff should be entitled to seek an exercise of the declaratory jurisdiction in circumstances such as the present.
and (at 798):
It does not follow from what I have stated that declaratory relief is available as a means of appeal, either before, during, or after committal proceedings. I am concerned only with an assertion by the plaintiff that the proceedings have been instituted in the face of an express statutory pre-condition. If this claim be made out by the plaintiff then there is every reason, in the pursuit of the due and orderly administration of law, for this court to assent to its process being invoked to expose the disregard of the statutory pre-condition, and to declare the absence of justification for the plaintiff being exposed to committal proceedings.
O'Keefe J concluded his discussion of the question of jurisdiction in the following terms:
The effect of these cases is to emphasise that there is jurisdiction to intervene by way of declaratory relief in committal proceedings, but that in the exercise of the Court's discretion it will be done only in an appropriate case. This view was confirmed in Connor v Sankey [1976] 2 NSWLR 570 . Street CJ said (at 592):
The declaratory jurisdiction of this court is not hedged about with the restrictions nor clouded by the complications that attach to the remedy by way of prohibition.
and (at 594):
If the plaintiffs are able to establish that the information and summonses allege offences not known to the law, I am of the view ... that the court has jurisdiction to grant declaratory relief accordingly and that it should exercise such jurisdiction. Similarly I am of the view that if the jurisdiction of the Justice of the Peace and the presiding Magistrate was not duly and properly invoked, then once again this court both has and should exercise its declaratory jurisdiction in favour of the plaintiffs.
Moffitt P, whilst accepting the wide jurisdiction conferred on the court to intervene by way of declaration in the proceedings of an inferior tribunal said (at 622):
It would not in my view, be a proper exercise of (the) admittedly wide power for this court to intervene in proceedings before another tribunal by declaring that such tribunal should do that which this court has no power to order, or which, in the exercise of a judicial discretion, it will decline to order.
and (at 623):
The reason it will decline to do so is because exclusive jurisdiction upon the matter is conferred by statute upon the tribunal in question. In this setting, there is no basis for the exercise of a judicial discretion to grant declaratory relief to usurp the authority or jurisdiction of the tribunal in question by declaring what order it should make. It would be a negative and somewhat futile exercise of power by a Superior Court to decline to make an effective order to ensure what should be done, yet declare what should be done, in the hope it will be done. The mere statement of these considerations demonstrate that, if the prerogative relief sought by the plaintiff will not be given, the declaratory orders sought by them should not be made.
The importance of discretionary issues in the present context was also emphasised by Shaw J in Tez v Longley (2004) 142 ACrimR 122 where his Honour said:
The plaintiff has sought a declaration pursuant to s 75 of the Supreme Court Act 1970 NSW.
The jurisdiction of this court to order declaratory relief, in respect of a Magistrate's decision in a committal proceeding, is a matter of discretion, to be determined in the circumstances of each case: Bacon v Rose [1972] 2 NSWLR 793 at 796 per Street CJ in Eq. However, the High Court has held that the grant of declaratory relief in relation to committal proceedings should only occur where there are most exceptional or special reasons so to avoid fragmentation of the criminal process: Sankey v Whitlam (1978) 142 CLR 1 at 25-26 per Gibbs ACJ and at 82 per Mason J.
The court, therefore, has jurisdiction to intervene in the proceedings of an inferior tribunal, such as is the case here, but should not do so lightly.
Order in the nature of mandamus
The court is empowered to grant relief in the nature of mandamus pursuant to s 69(1)(c) of the Supreme Court Act 1970 NSW. However, the court will only do so where there has been a constructive failure, on the part of the Magistrate, to exercise the Court's jurisdiction. The correctness, or otherwise, of the Magistrate's refusal of the accused's application is not the question to be considered in determining whether an order in the nature of mandamus is called for: R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 243. The real question is whether or not the decision was a correct exercise of the tribunal's power. The decision of Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 eloquently expresses this notion at 420:
... the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction. But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply "a wrong and inadmissible test," or to "misconceive its duty," or "not to apply itself to the question which the law prescribes," or "to misunderstand the nature of the opinion which it is to form," in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as being purported and not in real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law. [Citations omitted.]
In circumstances where I, or another judicial officer may form a different opinion to the learned Magistrate in respect of the application, on the same facts, this will not constitute a jurisdictional error if the Magistrate determined the issue in accordance with the relevant law: McKirdy v McCosker (2002) 127 ACrimR 217 at [4] per Howie J:
The question for this Court is not whether the Magistrate was wrong in refusing to give the direction sought, even if this error involved a misconstruction of the section, but whether he failed to exercise the jurisdiction conferred upon him by the section or so misconceived the nature and extent of the jurisdiction or the manner in which it was to be exercised that his purported exercise of the jurisdiction was in truth no exercise at all.
The Court is, therefore, required to make a finding of jurisdictional error before remitting the matter to the Magistrate for re-consideration in accordance with the law. (paras 37-39).
19 See also Quami v DPP (NSW) and Anor (2008) 186 A Crim R 72.
20 Because of the matters raised by his Honour, I have decided, with the concurrence of the parties, that it is appropriate to determine this matter without considering the question of the relief which may be available under the Crimes (Local Court and Review) Act 2001. Moreover, in dealing with the orders which the plaintiff seeks by way of prerogative relief, I have borne steadily in mind the principles which emerge from the authorities cited in Steele (supra) and the restraint which is to be exercised in granting such relief.