Read in its context and in the light of issues in the case, it is clear that his Honour was referring to the exercise of a judicial discretion by a justice in the course of carrying out his or her function as Sugerman JA found it to be, that is, acting "judicially" in the second of the two senses described by Lopes LJ.
20 In my view, the task entrusted to a registrar or a magistrate under s49 of the Criminal Procedure Act should be understood in that way. The rationale for the present legislative provisions governing private prosecutions was examined by Kirby J in Potier v Magistrate Huber [2004] NSWSC 720 at [4]-[8]. By s48 of the Criminal Procedure Act, the fiat of a registrar or magistrate is not required for the commencement of a prosecution by a police officer or public officer, who might be assumed to be doing no more than exercising their function to enforce the law and who could be expected to have the means to satisfy any costs order made against them. However, s49 requires the intervention of a registrar or magistrate in the initiation of private prosecutions because private citizens have a personal interest in the outcome of a prosecution and may not be in a position to assess its appropriateness, the prospect of its success, or the possibility of adverse consequences for them. Hence the discretion conferred on a registrar or magistrate to refuse to issue a court attendance notice.
21 The fact remains, however, that the exercise of that discretion by both the registrar and the magistrate is an administrative function, albeit one to which a judicial mind is to be brought. As I have said, the application before Magistrate O'Shane was treated as a review of the deputy registrar's decision, and it was conducted in open court. In truth, the only jurisdiction available to her Honour was that conferred by s49(3). That did not require a proceeding in court. She could have considered the application in chambers, just as the deputy registrar had.
22 Let me turn, then, to the course of the plaintiff's application for review before Magistrate O'Shane. This is to be found in affidavits filed by the plaintiff, together with the transcript of the hearing before her Honour on 12 January 2006. At that time, the plaintiff's appeal to the Court of Criminal Appeal had been heard but judgment was reserved.
23 The application had been listed for mention on two previous occasions, on the first of which it was estimated that the hearing would take forty-five minutes plus reading time, while on the second the estimate was thirty minutes plus reading time. The matter was called on before her Honour late in the day, at 3.45pm. Asked by the plaintiff at what time she proposed to adjourn, her Honour said no later than four o'clock. The plaintiff pointed out that the matter had been set down for "a minimum of half an hour" and suggested that it should be adjourned. Her Honour declined to do so.
24 Her Honour said that she had read the application, noting that the plaintiff had set out his allegations in the facts sheet. There ensued an exchange between them from which it appears that she may not have read the accompanying brief of evidence, which had been before the deputy registrar. I must say that that is not entirely clear from the transcript, but I am prepared to assume that it was the case.
25 Her Honour asked the plaintiff what was the basis for the charge he wished to bring against Supt Laidlaw. The plaintiff said that the "exhibits" were the critical documents, by which I take him to have meant the brief of evidence. Pressed to answer her Honour's question, he said that Supt Laidlaw had been in charge of the investigation, that he had sought and obtained critical documents during the course of it, and they were "never" disclosed to the defence. If they had been, he said, they would have "dramatically changed the course of the trial". Her Honour elicited from him that he had been legally represented at the trial, and inquired whether subpoenas had been issued in the course of preparing his defence. He replied that they had not, despite his instructions that they should be, because of difficulties with legal aid funding.
26 The plaintiff told her Honour that a book had been published about the trial by one of the jurors, from which it appeared that the jury had placed considerable weight upon the evidence of tape recorded conversations, including the telephone conversations to which I had referred, in arriving at their verdicts. This was a reference to the book, Secrets of the Jury Room, by the journalist, Malcolm Knox. The plaintiff told her Honour that he had extracts from the book for her consideration, but she did not take up his implied offer to produce them. He went on to say that he did not become aware of the Telstra material concerning the call charge records until early 2005, in the course of preparing his appeal.
27 Having ascertained that judgment had been reserved in the plaintiff's appeal, her Honour suggested that he await the Court's decision. She told him that there was nothing in his application and nothing which he had put before her orally which persuaded her that she should make "any other determination of the matter than has already been made".
28 Her Honour inquired of the plaintiff whether this was indeed the third application he had made for the issue of a court attendance notice against Supt Laidlaw. The plaintiff explained that it was only the second application, and that it was founded upon material different from the first. In particular, he said, the first application had not been accompanied by the brief of evidence which he had furnished on the second occasion. Her Honour expressed the view that he was "clutching at straws", and dismissed the application.
29 In this Court, the plaintiff developed his arguments at some length in written submissions and in oral argument on two separate days of hearing. I trust that I do those arguments no disservice by dealing with them succinctly.
30 He complains that her Honour did not allow sufficient time for him to present his application and take her to the material upon which he relied. He pointed to the differences between the material founding the application for a court attendance notice on this second occasion and that upon which the earlier application was based. It is true that there are differences. The earlier application made no reference to the Telstra call charge records, because the plaintiff says that he was not then aware of them. In addition, the later application raises the duty of disclosure by investigating police enshrined in s15A of the Director of Public Prosecutions Act 1986, a provision to which I shall turn shortly. He also complains, as I have said, that her Honour appeared not to have read the brief of evidence, and that she did not receive and consider the extracts from Mr Knox's book.
31 In effect, it is his case that the application should have been adjourned to allow more time to present it, that it was dealt with by her Honour peremptorily, that she had not mastered the material upon which it was based, and that she interrupted him with questions so as to leave him with little opportunity to develop his submissions in the limited time available. In the result, he says, he was denied procedural fairness and her Honour did not apply the appropriate test in determining the application, so as constructively to have failed to exercise her jurisdiction.
32 The relief he seeks is in the nature of certiorari and mandamus. I am indebted to Mr Robson for his examination in written submissions of authorities on those remedies, and on the issue of procedural fairness in decision making of an administrative kind as opposed to judicial proceedings in the ordinary sense. However, I find it unnecessary to turn to those authorities or to examine the appropriateness of the remedies sought by the plaintiff because I am satisfied that no basis for prerogative relief of any kind has been established.
33 Much of the plaintiff's argument was founded upon the assumption that what her Honour was engaged in was a review of the deputy registrar's decision, rather than the exercise of her independent jurisdiction under s49(3) of the Criminal Procedure Act. No doubt it was this which has led to his understandable misapprehension that her Honour was bound to read all the material that had been before the deputy registrar and that he was entitled to be heard in a proceeding in open court. As I have said, her Honour could have dealt with an application under s 49(3) in chambers, in his absence.
34 As I have also said, it is far from clear that she did not read the brief of evidence, as the plaintiff asserts. However, assuming that to be so, it is of no moment. The plaintiff acknowledged in oral argument before me that the statement of facts was a summary of the material in the brief of evidence. It was a sufficient basis for her Honour to determine whether it was appropriate to issue a court attendance notice, and she did not need to examine the supporting evidence. Indeed, it appears to me that an application for issue of a court attendance notice would normally be founded upon a summary of facts and, unless the registrar or magistrate required it, it would be neither necessary nor appropriate to submit the evidence upon which it was based.
35 Even if the plaintiff had been entitled to be heard orally, it cannot be said that he was not. The hearing was brief, but the transcript discloses that he had adequate opportunity to explain the case he sought to make against Supt Laidlaw. That did not call for an exposition of the material in the brief of evidence. Nor was it appropriate to take her Honour to extracts from Mr Knox's book. Putting aside questions of policy inhibiting inquiry into the decision making process of a jury: cf R v Emmett and Masland (1988) 14 NSWLR 327, the significance which the jury at the plaintiff's trial might have placed upon the tape recorded evidence was of no relevance to the question her Honour had to determine.
36 The insuperable difficulty the plaintiff faced was that the statement of facts and other written material he furnished (and, for that matter, what he submitted to her Honour orally) failed to identify any basis for the charge which he levelled against Supt Laidlaw. His allegation was the failure to disclose, or the tardy disclosure, of relevant material to the defence. However, it was the prosecutor who bore that duty of disclosure, not the police officer in charge of the investigation. Clearly, her Honour had that distinction in mind when she asked the plaintiff whether any subpoenas had been issued.
37 Section 15A of the Director of Public Prosecutions Act now imposes a duty on police officers investigating indictable offences to disclose to the Director any material which might assist the case for the prosecution or the defence. That section did not come into operation until November 2001, after the plaintiff's trial. In any event, by its terms it does not require a police officer to disclose material directly to the defence.
38 The offence created by s319 of the Crimes Act is the doing of an act, or the making of an omission, with the intent to pervert the course of justice. It may be that an investigating police officer would be guilty of that offence if he or she deliberately suppressed material helpful to the defence, ensuring that the prosecution had no opportunity to disclose it, with the intention of prejudicing the accused's case at trial. No foundation for such a case against Supt Laidlaw was to be found in the plaintiff's written material, and he did not articulate such a case orally.
39 Accordingly, her Honour was right to dismiss the application and, putting aside the question of the appropriateness of the procedure by way of review, no error has been shown in the manner in which she dealt with it. I might add that, even though the proceedings were treated as a review, it appears from the transcript that her Honour made her own determination that it was inappropriate to issue a court attendance notice, effectively exercising the power conferred on her by s49(3). I should also add that the differences between the material founding the subject application and that upon which the previous application was based were clearly of no consequence and, in any event, it does not appear that the fact that the subject application was not the first of its kind was influential in her Honour's decision.
40 Finally, it is necessary to refer to three further matters. The plaintiff also complains that it had been his intention to "offer to the court an alternative charge" of suppressing evidence under s317(a) of the Crimes Act, but had no opportunity to do so. This complaint is of no substance. If he had wished to lay such an alternative charge, it could have been the subject of his written application. It was not, and both the deputy registrar and her Honour could do no more than deal with what was before them.
41 In written and oral submissions on the second day of the hearing before me, he raised what he described as a "constitutional issue", that is, whether it was appropriate in the initiation of prosecutions to distinguish between police and public officers, on the one hand, and private citizens, on the other. The fact is that valid legislation does just that. This matter is also without substance and, it must be said, was only faintly pressed. Lastly, he raised a question whether I, as a judge of this Court, could sign a court attendance notice if I thought it appropriate. Clearly, I cannot. That function is governed by statutory provisions which assign it to registrars of the Local Court and magistrates.
42 The matters of which the plaintiff complains were also the subject of grounds of his appeal to the Court of Criminal Appeal. Those grounds were dismissed: see the leading judgment of McClellan CJ at CL at [35]-[38], [48-49]. That, of course, is by no means determinative of my decision, which turns on Magistrate O'Shane's conduct of the application before her. For the reasons I have given, the plaintiff's summons must be dismissed. I do not imagine that there would be any utility in an order for costs, but the parties should have the opportunity to be heard on that matter.