Potier v Magistrate O'Shane & Anor

Potier v R [2006] NSWCCA 27 Potier v Magistrate Maughan [2004] NSWSC 590 CASES CITED : Ex parte Qantas Airways Ltd; Re Horsington & Anor [1969] 1 NSWR 788 R v Emmett and Masland (1988) 14 NSWLR 327 Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431 Potier v Magistrate Huber [2004] NSWSC 720

TEXTS CITED : "Secrets of the Jury Room" Malcolm Knox

Malcolm Huntley Potier (plaintiff) PARTIES : Magistrate P O'Shane (1st defendant) Detective Superintendent David Laidlaw (2nd defendant)

COUNSEL : Plaintiff in Person S Robson (2nd defendant)

Plaintiff in Person SOLICITORS : Crown Solicitor (2nd defendant) Submitting appearance (1st defendant)

LOWER COURT JUDICIAL OFFICER : Magistrate P O'Shane

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2006/11028 Malcolm Huntley Potier v Magistrate O'Shane & Anor

JUDGMENT 1 HIDDEN J: This case is part of a web of litigation instituted in this Court by the plaintiff, Malcolm Huntley Potier. Its background is his conviction, after a trial in the District Court, of two counts of soliciting to murder. His appeal against conviction and sentence was dismissed: Potier v R [2006] NSWCCA 27. In the proceedings before me he appeared unrepresented. 2 The proceedings arise from his attempt to have a court attendance notice issued against the second defendant, the police officer who had been in charge of the investigation of his crimes, Detective Superintendent Laidlaw. He sought to launch a prosecution against that officer for perverting the course of justice, an offence under s319 of the Crimes Act 1900. The first defendant, Magistrate O'Shane, refused to issue the court attendance notice. The plaintiff challenges that decision in this Court, seeking prerogative relief. The learned magistrate entered a submitting appearance. Supt Laidlaw was represented by Mr Robson of counsel. 3 The plaintiff requires leave under the Felons (Civil Proceedings) Act 1981 to pursue the matter. Mr Robson did not oppose that course, and it appears to me to be desirable that the case be determined on its merits. As will be seen, there are questions of substance to be considered. Accordingly, leave under that Act is granted. 4 The nature of the criminal proceedings against the plaintiff is sketched in the judgment of the Court of Criminal Appeal to which I have referred. Part of the evidence against him consisted of recordings of telephone conversations between him and another person, who became a police informer. He used a pay phone at the Villawood Detention Centre, where he was detained at the relevant time, and the calls were recorded through an intercept on the informer's phone. 5 The plaintiff challenged the authenticity of those recordings. In support of that challenge, he relied at the trial upon evidence of what is known as a "web trace" by the informer's service provider, Optus, which furnished details of calls made to and from that service. The web trace had no record of some of the calls alleged to have been made. However, in evidence at the trial, an officer of Optus explained that the trace might be incomplete because it would not record calls from a Telstra service, which would be forwarded through more than one exchange. Telstra was the service provider for the pay phone used by the plaintiff. 6 What did not emerge at the trial was that Telstra call charge records for the pay phones at Villawood Detention Centre to which the plaintiff had access also showed no record of those particular calls. The plaintiff complains that the web trace was not disclosed to the defence until towards the end of the Crown case at the trial, and the Telstra records were not disclosed before or at the trial and, indeed, came to his attention only in the course of preparing his appeal. This was so, he says, even though investigating police had become aware of the web trace before the trial and the Telstra records had been furnished to them, in response to a letter from Supt Laidlaw, during the trial (albeit at a late stage of it). The plaintiff lays responsibility for the delay in disclosing both documents to the defence at the feet of Supt Laidlaw. 7 It was this which led to his application in September 2005 for the issue of the court attendance notice. He pursued that application also without legal representation. It was accompanied by a document entitled "Facts Sheet", which recited the history I have sketched and framed a charge to the effect that Supt Laidlaw withheld evidence from the plaintiff which would have been used in his defence, intending thereby to pervert the course of justice. The facts sheet was a summary of a brief of evidence upon which he relied, and which was also furnished with the application. 8 In short, the plaintiff sought to launch a private prosecution against Supt Laidlaw. Authority for such a prosecution is now to be found in s14 of the Criminal Procedure Act 1986. It is necessary to examine the statutory framework for that procedure. 9 Perverting the course of justice is an indictable offence, the prosecution of which begins by committal proceedings. Section 49 of the Criminal Procedure Act, as it stood at the time the plaintiff sought the issue of the court attendance notice, provided as follows: 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 section has since been amended in a manner which is of no consequence. The term "public officer" is defined in the Act in such a way as clearly to exclude the plaintiff. A ground for refusal to issue a court attendance notice under s49(2)(c) is to be found in cl 57 of the Local Courts (Criminal and Applications Procedure) Rule 2003, which provides: 57 Grounds of refusal of private prosecutions or applications 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.

The reference to an "application notice" is not material for present purposes. 11 The plaintiff's application was considered by a deputy registrar, who refused to sign the court attendance notice. A document entitled "Record of Refusal", signed by that deputy registrar, gave as the reason for refusal that the proceedings were "frivolous, vexatious, without substance or have no reasonable prospect of success", citing cl 57 of the Rule. It went on to recite the following: This is the third application by the prosecutor to initiate a private prosecution against this defendant under s319 of the Crimes Act NSW. The previous two applications were refused by the Deputy Registrar and their decisions affirmed on review by a Magistrate. One of those cases was subject to an application for prerogative relief in the Common Law Division of the Supreme Court - see Malcolm Huntley Potier v Magistrate Maughan [2004] NSWSC 590. That application was refused. This application substantially relies on material already presented in the previous applications which have been refused. The further material provided in this application does not add anything relevant to the prosecutor's allegation against the defendant. 12 The plaintiff denies that there had been two previous applications. The only previous application, he says, was that which was the subject of the decision of Bell J in Potier v Magistrate Maughan. That may well be so, but nothing turns on it. More importantly, however, he contends that the factual basis for the subject application is significantly different from the earlier application, so that it was not true to say that the further material which he provided did not "add anything relevant" to the allegation in that earlier application. 13 He sought a review of the deputy registrar's decision, and it is that which came before Magistrate O'Shane. I think that there is force in Mr Robson's submission that that procedure was misconceived, and that the jurisdiction which her Honour was exercising was that afforded by s49(3) of the Criminal Procedure Act, that is, the determination by a magistrate whether a court attendance notice should be issued following the refusal of a registrar to do so. 14 A broad jurisdiction to review the exercise by registrars of their powers is conferred on a Local Court by cl 61 of the Local Courts (Criminal and Applications Procedure) Rule, which provides: 61 Review of powers exercised by registrars If a registrar of a Court gives a direction, makes an order or does any other thing in committal proceedings, summary proceedings or application proceedings, the Court may, on application by the prosecutor or the accused person: (a) review the direction, order or action, and (b) by order confirm, vary or discharge the order or direction or take such other action as it thinks fit. 15 As Mr Robson pointed out, cl 61, by its terms, relates to "committal proceedings, summary proceedings or application proceedings" which are on foot. It provides for the review of decisions by registrars in the course of, or in applications ancillary to, such proceedings. The jurisdiction to review is conferred upon a Local Court, and is a judicial function as that expression is normally understood. 16 By contrast, the effect of the deputy registrar's decision in the present case is that no proceedings were commenced. The plaintiff's only recourse was an application to a magistrate under s49(3). It is significant that that sub-section commits the determination whether a court attendance notice should be issued to a magistrate, rather than to a Local Court, suggesting that in making such a determination the magistrate is not sitting as a Local Court. This conveys that the function of a magistrate under subs (3), like that of a registrar under subs (1) and (2), is an administrative one. 17 Guidance as to the nature of that function is to be found in Ex parte Qantas Airways Ltd; Re Horsington & Anor [1969] 1 NSWR 788. It is unnecessary to examine the facts of that case, which was concerned with the institution of proceedings before the Chief Industrial Magistrate upon complaint under Commonwealth legislation which has since been repealed. Of course, the case pre-dates the present legislative scheme but the Court of Appeal had occasion to consider authorities bearing upon the commencement of proceedings by information or complaint, including the issue by a justice of a summons or warrant under the Justices Act 1902. Sugerman JA (at 792) cited the following passage in the judgment of Lopes LJ in Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431 at 452: The word "judicial" has two meanings. It may refer to the discharge of duties exercisable by a judge or by justices in court, or to administrative duties which need not be performed in court, but in respect of which it is necessary to bring to bear a judicial mind… 18 Sugerman JA expressed his conclusion about the function of a justice as follows (at 794-5): …in receiving a complaint and issuing a summons thereon ( a fortiori in receiving an information where there is for the justice the further question whether a warrant should be issued in the first instance…) a justice is not acting merely ministerially in the sense that he is bound to issue his summons upon the mere receipt of the complaint. He is not bound to act mechanically or as a mere rubber stamp. He has a discretion to be exercised by him… and upon whose exercise a judicial mind is to be brought to bear. He must, that is to say, act "judicially" in the second of the two senses earlier referred to… He may… refuse to issue his summons if there is no prima facie case or the proceeding is vexatious, and perhaps on other grounds as well… 19 Mason JA agreed with Sugerman JA. Asprey JA wrote a concurring judgment, in which he conducted his own examination of relevant authority. As to the function of a justice he had this to say (at 798): …in deciding whether or not to issue a summons upon an information or complaint a justice has a judicial discretion and … the discretion is a wide one; his refusal to issue a summons is not limited to his satisfaction that a prima facie case has not been made out and if, in the proper exercise of his discretion, there appear to him to be other good grounds, he may decline to do so … .…having regard to the scope of the matters which may be made the subject of an information or complaint, it is important that such a discretion should exist to safeguard members of the community against abuse of process.

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.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.