Potier v Huber & Ors

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

11255/04 MALCOLM HUNTLEY POTIER v MAGISTRATE HUBER & ORS

JUDGMENT 1 KIRBY J: This is an application for prerogative relief against the refusal by a Local Court Magistrate (Ms Huber) (first defendant) to issue Court Attendance Notices, that being the means by which a private citizen commences a private prosecution. 2 Malcolm Huntley Potier (the plaintiff) was arrested in May 2000. He was charged with two counts of solicit to murder. In September 2001 he stood trial in the District Court. Mr Michael Barr (second defendant) was the Crown Prosecutor. He was instructed by Mr Ross Stainer (third defendant), a solicitor with the Director of Public Prosecutions. On 16 October 2001 the jury returned verdicts of guilty in respect of each count. Mr Potier was thereafter sentenced. Appeals have been lodged by Mr Potier (against conviction and sentence) and by the Crown (against sentence). They have not yet been determined. 3 Mr Potier, meanwhile, has sought to commence private prosecutions against those responsible for prosecuting him. The first was directed at the police officer in charge of his prosecution, Detective Inspector David Laidlaw, and was unsuccessful (Potier v Magistrate Maughan [2004] NSWSC 590). The summons before me concerns a prosecution by him of the Crown Prosecutor at his trial (the second defendant), and his instructing solicitor (the third defendant). Before dealing with the decision of the Magistrate and the complaints of Mr Potier, I should first describe the procedure in a private prosecution.

Private prosecution. 4 The Justices Act 1902, before its repeal, made no distinction between prosecutions launched by the police and those by a private citizen, although certain offences (such as incest) were subject to special requirements. For an indictable offence, the Act said this: " 21 When information may be laid An information may be laid before a Justice in any case where any person has committed or is suspected to have committed any treason or other indictable offence: (a) in New South Wales ...." 5 In 1992 the Law Foundation issued a Discussion Paper concerning provisions of the Justices Act, including the following proposal in respect of the commencement of prosecutions: (p9) "The first proposal is to abolish the need to lay an Information before a Justice of the Peace in the majority of cases. An informant, being a police officer or when acting on behalf of a government body or other organisation, would simply prepare and file in the court registry an Information which would contain all relevant details but would appear under the signature of the informant alone. The only situations where a Justice would need to become involved in the process are those where the informant is acting on his or her own behalf (and the Information would be laid before the Justice) or where the informant is seeking the issue of a warrant of apprehension (and the Information would be sworn before the Justice). The advantages of this proposal are several. Firstly, it makes the issue of process an administrative function. It puts responsibility for the commencement of the action on the informant. It will mean a saving in time for both informants and Justices, in that there will no longer be a delay in the issue of process while the Informations are considered by Justices." 6 The paper then dealt with private prosecutions in these terms: (p9) "In regard to private informants, it was felt that the filtering achieved by the laying of Informations before Justices would continue to serve a useful purpose. Informants acting on their own behalf are not in the best position to assess the appropriateness or likely success of their proposed action. They may also be under a misapprehension about what taking the matter to court will achieve for them and they may be unaware of possible adverse consequences to them. By continuing to involve Justices in the issue of such process, a mechanism exists whereby informants can be acquainted with possible outcomes." 7 The paper considered the arguments in favour of these proposals, stating the following: (p10) "The main arguments in response to the objections of private informants are twofold. The first is that it may be assumed that, in the overwhelming bulk of government prosecutions, the informant is motivated by nothing more than a desire to enforce the law and to do his or her job. Where it can be shown that this is not the case and that the prosecution is an abuse of process, there are disciplinary procedures available to the informant's superiors which are not present in respect of private informants. Public informants also have the means to satisfy any costs order made against them, which is not necessarily the case in respect of private informants. The second argument focuses on the effectiveness of the filter represented by the Justice's consideration of the Information. As mentioned above in the section headed 'Problems", the use of 'in-house' Justices and the sheer volume of matters processed through the Courts undermine the utility of the Justice's involvement." 8 The Final Report adopted these proposals. When introducing the reforms in December 2001, the Attorney General made reference to the Discussion Paper and the Final Report in his Second Reading Speech (Hansard 19427). The Criminal Procedure Act 1986, commencing on 7 July 2003, altered the procedure for the commencement of prosecutions. In the case of an indictable offence, committal proceedings would commence by the issue of a Court Attendance Notice against the person suspected of having committed the offence (s47(1) Criminal Procedure Act). Where the prosecution was commenced by the police or a public officer (as defined by s3), the following provision applied: " 48 Commencement of proceedings by police officer or public officer If a police officer or public officer is authorised to commence committal proceedings, the officer may commence committal proceedings for an offence against a person by issuing a court attendance notice and filing the notice in accordance with this Division." 9 In the case of a private prosecution, however, the following procedure was specified: " 49 Commencement of private prosecutions (1) If a person other than a police officer or public officer is authorised to commence committal proceedings against a person for an offence, the person may commence the proceedings by issuing a court attendance notice, signed by a registrar, and filing the notice in accordance with this Division. (2) A registrar must not sign a court attendance notice if: (a) the registrar is of the opinion that the notice does not disclose grounds for the proceedings, or (b) the registrar is of the opinion that the notice is not in the form required by or under this Act, or (c) the registrar is of the opinion that a ground for refusal set out in the rules applies to the notice. (3) If a registrar refuses to sign a court attendance notice proposed to be issued by any such person, the question of whether the court attendance notice is to be signed and issued is to be determined by a Magistrate on application by the person." 10 The Local Courts (Criminal and Applications Procedure) Rule 2003 (which operated from 13 June 2003), included the following Rule: " 57 Grounds of refusal of private prosecutions or application notices A registrar must not sign a court attendance notice, or an application notice, in proceedings commenced by a person other than a police officer or a public officer if of the opinion that the proceedings are frivolous, vexatious, without substance or have no reasonable prospect of success." 11 A private prosecution in respect of a summary offence is subject to the same regime (s174 Criminal Procedure Act). The Local Court is given the power to review any direction, order or action of a Registrar, which may be confirmed, varied or discharged (Rule 61) (cf s49(3) Criminal Procedure Act).

The private prosecution by Mr Potier. 12 On 12 January 2004 Mr Potier made application to a Registrar of the Local Court to issue attendance notices against Messrs Barr and Stainer in respect of an offence under s317 Crimes Act 1900. That section, relevantly, is in these terms: " 317 Tampering etc with evidence A person who, with intent to mislead any judicial tribunal in any judicial proceeding: (a) suppresses, conceals, destroys, alters or falsifies anything knowing that it is or may be required as evidence in any judicial proceeding, or ... is liable to imprisonment for 10 years." 13 The document by which Mr Potier made his application included the proposed indictment against the second defendant, expressed in these terms: "That with full prior knowledge of the importance of a potential witness then Detective Superintendent John Draffin of the Federal Police Force which would have assisted the Informant in his Trial the Offender, MICHAEL BARR, in association with ROSS STAINER did knowingly withhold and suppress the existence of the said witness contrary to Section 317(a) of the New South Wales Crimes Act 1900." 14 The facts (described as "Full Facts") relied upon by Mr Potier were as follows: "In February 2000 the Informant, Malcolm Huntley Potier, met with a Deborah Lee Conway at her shop in Seaforth Victoria. He was at the time an unlawful non-citizen. Subsequent to this he was taken into Immigration custody in Melbourne and later transferred to the Villawood Detention Centre in Sydney. Throughout his time in detention Potier communicated on a regular daily basis with Conway. In April 2000 then acting Detective Inspector David Laidlaw acting on information received from Conway caused the setting up of Operation Ramsbury; its intention to investigate the possible commission of a crime by the Informant Malcolm Huntley Potier then at the Villawood Detention Centre in Sydney. The Informant Potier was subsequently arrested in May 2000 and convicted of 2 Charges of Solicit to Murder it was only at this time was he told that Conway had been in communication and was acting under instructions with the New South Wales Police force. He is currently at Goulburn Correctional Centre awaiting the hearing of his Appeal against conviction. Conway provided a number of interviews, which were included in the Crown Brief; in addition she provided various statements concerning her evidence, which were disclosed to the defence. However on the 31st July 2001 Conway had a meeting with the Offender and a Mr Ross Stainer (co-accused). During this meeting she disclosed that she had a close ongoing friendship with then Detective Superintendent John Draffin of the Federal Police Force. She confirmed that she had spoken to Draffin on a regular basis and throughout the period of Operation Ramsbury by either ringing him up to 4 times a day or meeting with him. During the voir dire and trial of Potier, Laidlaw gave evidence that Operation Ramsbury, under his control had sought to obtain evidence against Potier by the use of the informant Conway who was in regular telephone contact with Potier. Conway's evidence during trial was that she had disclosed the existence of Potier and his daughter to the Federal Police in February 2000. She admitted having been given by Potier custody of 5,000 pounds sterling and just under $2,000. She claimed that the 5,000 pounds was subsequently stolen by a part time member of her staff who she did not have any details other than that person's first name. In the following months to Potier's detention she claimed she had been asked by Potier to seek on Potier's behalf a hit man. Her evidence was largely unsupported by any independent corroboration and the Jury formed a view as to her evidence as given. The meeting of the 31st July 2001 between Conway, Barr and Stainer represents the first provable instance that the co-accused knew of the existence of Draffin. Having regard to the fact that Conway's evidence that she would be able to give to the Court was unsupported by any independent confirmation Draffin, through not only his occupation but that he was in regular daily contact with Conway, would have been a major basis for corroboration any of Conway's evidence. However he would also have been in a position to contradict her evidence should it be called into question as undoubtedly it would be during the trial. The statement of Conway's was dated 10th September 2001 and given to the defence on the 12th September 2001, 2 days after the commencement of the voir dire. This was the first time that the existence of Draffin was disclosed to the defence. The Crown claimed that he would not provide any statement as he no longer worked for the Federal Police nor could he be contacted. The defence sought an adjournment of the proceedings in view of the existence of Draffin, which was rejected by his Honour as the matter had commenced. During the trial and only under cross-examination of the Crown witness Conway it become apparent to the defence the full extent of the significance of Draffin. Conway stated that she had known Draffin for 2 years prior to meeting Potier and his daughter. She spoke to him on a regular basis sometimes four times a day. She discussed with him and received advice on her friendship and contents of her discussions with Potier on a daily basis. She also discussed with Draffin the detailed instructions she was receiving from Laidlaw and other members of the New South Wales Police. The evidence given to the Jury by Conway and Potier prior to the commencement of the use by the New South Wales police of telephone intercepts and listening device warrants was in the main contradictory. Amongst the evidence given to the Jury by Conway was said to exhibit that the Informant was talking 'in code' although there was no independent confirmation of this or any of the other allegations made by Conway. There was presented to the Jury by the defence a number of instances where Conway had a motive to lie particularly regarding the loss of Potier's money. There was no evidence from third parties or exhibits that in any way supported Conway's testimony. In the final analyses the Jury, according to a book entitled Secrets of the Jury Room written by a member of the Jury, believed the Crown witness Conway rather than Potier which led to his conviction. The Informant alleges that Draffin would have either been able to support or contradict the evidence of Conway and Barr and Stainer knew this. Both individuals are Officers of the Court and would immediately know that they had an obligation to disclose to the defence as soon as they knew of the existence of Draffin and his detailed relationship with Conway. Both co-offenders deliberately suppressed and withheld all details of this potential witness from 31st July 2001 to 10th September 2001." 15 The application to prosecute the third defendant was in similar terms. 16 The Registrar refused each application. He ticked a box on a form which signified that he regarded the application as "frivolous, vexatious, without substance or (having) no reasonable prospects of success". 17 Mr Potier then sought a review under Rule 61 (or s49(3)). The review was heard by her Honour Magistrate J Huber on 25 February 2004. Mr Potier represented himself. The application was again refused. Her Honour gave the following judgement: (T20/21) "BENCH: Application has been made to review a Registrar's refusal to issue two court attendance notices. Both court attendance notices are pursuant to s317A (sic) of the Crimes Act, that is, suppressing the existence of a witness, one citing Mr Michael Barr as the defendant and the other Mr Ross Stainer. Both court attendance notices were refused by the Registrar on the basis of being frivolous, vexatious, without substance or having no reasonable prospect of success. Attached to both applications I have had the opportunity to have regard to a full facts sheet. Both court attendance notices have been properly filled out and signed and it is an issue now as to whether or not I am of the opinion that they are not frivolous, vexatious, without substance or having no reasonable prospect of success. The facts sheets disclose allegations which may, indeed, found the basis for an appeal and I note what has been put by Mr Potier in his submissions that it is not for me to have regard to any exercise of discretion with respect to any judicial act, that I am not to turn my mind in essence to anything other than to be a clearing house but it is quite clear that I must be satisfied that there is some substance and that there is a prospect of success and I am not so satisfied and the application is refused."

The Summons by Mr Potier. 18 Mr Potier thereafter issued a Summons in this Court in which he sought the following orders against Ms Huber (the first defendant), Mr Barr (the second defendant) and Mr Stainer (the third defendant): "1. An Order that the 1st Defendant be directed to issue without delay Court Attendance Notices pursuant to the Local Courts (Criminal and Applications Procedure) Rule 2003. OR in the alternative: 2. That this Court shall issue Court Attendance Notices pursuant to the Local Courts (Criminal and Applications Procedure) Rule 2003 as applied for by the Plaintiff in the Central Local Court Sydney on the 25th February 2004 against the 2nd and 3rd Defendants. 3. That the 2nd and 3rd Defendants do attend the issuing Court and answer the Indictments so lodged and covered by the said Court Attendance Notices. 4. Time for service to be abridged to the earliest possible date together with a return of these proceedings. 5. Any other Order that the Court may see fit to grant." 19 The plaintiff was represented by counsel. Counsel provided written submissions, suggesting two jurisdictional errors. Paraphrasing those submissions, the errors asserted were as follows: · First, the learned Magistrate mistook the nature of her function. There was therefore jurisdictional error warranting certiorari. · Secondly, there was no basis upon which her Honour could have regarded the material as "frivolous, vexatious, without substance or having no reasonable prospects of success". There was therefore a constructive failure to exercise jurisdiction. There was therefore jurisdictional error justifying certiorari. 20 I will deal with each of these matters in turn.

The nature of the Magistrate's function. 21 The plaintiff's counsel relied heavily upon a decision of the Supreme Court of South Australia (in Banco) in R v Manos: Ex parte Samuels (1981) 28 SASR 262. The headnote of that decision conveniently identifies the principle relied upon by Mr Potier, and is as follows: "The making of a complaint before a Justice of the Peace, pursuant to ss 49 and 50 of the Justices Act, 1921-1980, does not involve any exercise of discretion or judicial act on the part of the Justice before whom the complaint is made." 22 Wells J, referring to the South Australian legislation concerned with the laying of an information to commence a prosecution (which was in similar terms to the repealed Justices Act 1902) said this: (at 269) "The Justice of the Peace does not, be it noted, concern himself with the merits, in truth or in law, of the complaint. He is a formal and exclusive clearing house - not a person exercising a judicial function or judicial powers." 23 It was said on behalf of the plaintiff that the learned Magistrate, when considering Mr Potier's application, wrongly concerned herself with the merits of the proposed prosecution, and the truth of the complaint. She should simply have issued the court attendance notice so that the truth, or otherwise, of the plaintiff's allegations could then be determined. 24 However, such a submission overlooks the changes made in July 2003 by the Criminal Procedure Act 1986 (ss 49 and 174). The Registrar (and the Court on a review) must not issue a court attendance notice in the circumstances defined by s49(2) (or s174(2)) and Rule 57. He or she is required to form a view upon the basis of the material provided whether the proposed prosecution is "frivolous, vexatious, without substance or have no reasonable prospects of success". That function is quite different from that being considered in R v Manos, where the legislation was quite different. The learned Magistrate was obliged, amongst other things, to address the question of merit (taking the 'case' at its highest) to determine whether it was without substance and there were no reasonable prospects of success. Such an evaluation may be different from an evaluation of truthfulness that follows the hearing of witnesses giving their evidence. Nonetheless, it was the duty of the Magistrate to form an opinion in respect of these issues based upon the material in front of her. 25 There is no substance in the first complaint.

Jurisdictional error. 26 The circumstances in which certiorari, or an order in the nature of certiorari (s69 Supreme Court Act 1970), is available were identified by the High Court in Craig v State of New South Wales (1994-95) 184 CLR 163 at 175. They include jurisdictional error, or an error on the face of the record. The record includes the initiating process (Craig at 182) as well as the reasons expressed by the Court or Tribunal (s69(4) of the Supreme Court Act; cf Victims' Compensation Fund Corporation v GM [2004] NSWCA 185, per McColl JA at paras 31-35). 27 Here, two matters emerged in argument. First, it was said that the learned Magistrate asked herself the wrong question in the short reasons that she provided. There was therefore error on the face of the record. The Act and the Rules required her not to sign the court attendance notice if she formed the opinion "that the proceedings (were) frivolous, vexatious, without substance or have no reasonable prospects of success". Instead, she said this: (T21) "... but it is quite clear that I must be satisfied that there is some substance and that there is a prospect of success and I am not so satisfied and the application is refused." 28 Counsel for the defendants acknowledged that her Honour, in this passage, did not formulate the test in the words of the Rule. However, it was plain, according to the defendants, that she had the correct test in the forefront of her mind. Immediately before that passage, her Honour said this: (T21) "... Both court attendance notices have been properly filled out and signed and it is an issue now as to whether or not I am of the opinion that they are not frivolous, vexatious, without substance or having no reasonable prospect of success." 29 The reformulation, which is the subject of criticism, involved, according to the defendants, a distinction without a difference. If the Magistrate could not find that something had substance, or a reasonable prospect of success, then, according to the defendants, that is the same as the finding required by Rule 57, namely, the application is "without substance or has no reasonable prospects of success". 30 I accept the defendants' arguments. There was no error on the face of the record. 31 The second matter to emerge in argument is that her Honour, in the course of Mr Potier's submission, was offered the evidentiary material, or some of it, upon which he would ultimately rely, were the matter to proceed. The transcript of argument included the following submission by Mr Potier: (T20) "All I have to do is present an indictment that has to be properly constituted. Should your Worship wish to look at all the relevant documentation I'm well in a position to hand it up to your Worship but I don't believe that you should necessarily go to that extent. If you wish to I can do that readily here and now. This matter is very simple and it is very clear. Despite the identities of the informant and the offender that should not be a prejudice to this motion in any way, shape or form and I really can see no argument to the contrary on such a matter but if your Worship wishes to examine the facts that is readily available." 32 In the result, Mr Potier did not seek to place any additional material before her Honour. Her Honour then gave the judgment set out above. Since that judgment plainly reveals her Honour's misgivings concerning Mr Potier's application, she should have accepted his invitation to examine the material he intended to rely on to see whether it dispelled her misgivings. 33 However, there are a number of difficulties with that submission. First, the transcript is not part of "the record" for the purposes of certiorari (Craig at 181), so that the error, if there was one, could not be characterised as an error on the face of the record. Secondly, dealing with jurisdictional error, a similar submission was made by Mr Potier before Bell J in the companion application to commence a private prosecution against Inspector Laidlaw. In that context her Honour made the following comment, with which I agree: (para 24) "24. ... It was not his Honour's function to decide whether the plaintiff's application would be improved by further or other evidence." 34 The plaintiff submitted, in effect, that there was a constructive failure to exercise jurisdiction by the learned Magistrate in that there was no evidence that was capable of satisfying the test in Rule 57. In Saffron v The Director of Public Prosecutions (1989) 16 NSWLR 397, Gleeson CJ said this in respect of such an assertion: (at 399) "As was observed by Glass JA in Wentworth v Rogers [1984] 2 NSWLR 422 at 433, the distinction between a real and an ostensible performance of duty, or between an actual and a constructive failure to exercise jurisdiction, is, in a context such as the present, easier to state than to apply. A magistrate, engaged upon the performance of the tasks imposed upon him by s41, might be alleged by the prosecution or the defence to have fallen into various kinds of error of fact or of law. It might be claimed that he has misunderstood the evidence, or given too much or too little weight to particular parts of it, or misapprehended the law relating to the charge in question. Errors of this kind, however, would ordinarily constitute errors within jurisdiction rather than failures to exercise jurisdiction. By contrast, the error of the magistrate which resulted in the granting of relief in Wentworth v Rogers was described ((1984) 2 NSWLR 422 at 433) as 'a misunderstanding on his part as to the circumstances in which he had power to discharge (the defendant) under s41(6)(a)'. In that case the magistrate's error was an error as to the nature of his powers and duties under s41 rather than an error either of fact or law in the exercise of those powers or the performance of those duties." 35 Does an examination of the material before the learned Magistrate suggest that she was in error as to the nature of her duties and powers, such that there was a constructive failure to exercise jurisdiction? Is there an absence of material capable of supporting an opinion that Mr Potier's application was "frivolous, vexatious, without substance or having no reasonable prospect of success", such that it should be inferred that the learned Magistrate misunderstood the nature of her duties and powers? 36 The "case" by Mr Potier against each defendant involved "suppression" or "concealment" of a fact for a period of five or six weeks before it was revealed. It was based upon the following assertions: · First, that the prosecution case against him substantially depended upon the testimony of the witness Ms Deborah Lee Conway. · Second, during the time that Ms Conway alleges that she was dealing and conversing with Mr Potier, she had a "close ongoing friendship with then Detective Superintendent John Draffin of the Federal Police Force". · Third, that on 31 July 2001, Messrs Barr and Stainer learned of the existence of the person Draffin. · Fourth, that on 10 September 2001, during a voir dire examination, a further statement was signed by Ms Conway disclosing the existence of Draffin. · Fifth, that on 12 September 2001, that statement was served upon lawyers for Mr Potier. · Sixth, that the suppression or concealment relied upon by Mr Potier was an alleged suppression or concealment by Messrs Barr and Staines from him and his lawyers between 31 July 2001 and 12 September 2001, not of a statement by Inspector Draffin, but of knowledge of his existence and friendship with Ms Conway. · Seventh, that it is asserted that such concealment from him and his lawyers was with intent to mislead "a judicial tribunal in judicial proceedings". · Eighth, that the evidence against Messrs Barr and Stainer of intent to mislead a judicial tribunal in judicial proceedings was that they were officers of the Court and would "immediately know that they had an obligation to disclose to the defence as soon as they knew of the existence of Draffin and his detailed relationship with Conway". 37 The material before the learned Magistrate and her judgment do not suggest that she was mistaken as to the nature of her duties and powers. Ms Huber addressed the issue raised by Rule 57 and formed an opinion. There was material before her upon the basis of which she could have formed that opinion. In my view there was no jurisdictional error, and specifically no constructive failure to exercise jurisdiction.

2. The plaintiff should pay the defendants' costs. **********

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