Zakaria v Local Court of New South Wales

Background to the proceedings

1. The plaintiff was charged with a number of firearms offences committed on 6 October 2016. There were three counts: possess unauthorised prohibited firearm, supply a firearm to a person unauthorised to possess it, and acquiring a pistol being a person subject to a firearms prohibition order.
2. Pursuant to a Court Attendance Notice, he was required to attend the Parramatta Local Court on 21 December 2016.
3. The charges were listed for hearing on 4 May 2017 with a 4-hour time estimate.
4. On 3 May 2017, an application was made by the Police to vacate the hearing date because a strictly indictable charge under s 51(1A) of the Firearms Act 1996 (NSW) was to be served and the Local Court did not have jurisdiction to hear that new charge.
5. In a Court Attendance Notice returnable on 4 May 2017, the charge pursuant to s 51(1A) of the Firearms Act 1996 was laid, asserting that the plaintiff supplied a black, semi-automatic pistol to Talal Alameddine.
6. I was informed by counsel for the plaintiff that that charge was withdrawn and in substitution Sequence 5 was laid returnable for 15 June 2017 at Parramatta Local Court. That offence was pursuant to s 50B(1) of the Firearms Act 1996 - give pistol to person not authorised by licence or permit.
7. An affidavit authored by a solicitor with conduct of the proceedings on behalf of the DPP, Mr Clayton, sworn 16 November 2017, was before me appended to Mr Malouf's affidavit. That affidavit outlined the history of proceedings from the DPP point of view. Mr Clayton stated that Sequence 4 was referred to the DPP on 3 May 2017. On 12 May 2017, it was allocated to Mr Clayton and between that date and 16 November 2017, he had care and control and management of the matter. On 29 May 2017, he informed the plaintiff's solicitor that the Office of the DPP was considering its position in relation to Sequence 4. He agreed that in a conversation on 13 June 2017, he has said to Mr Malouf that it was an "all or nothing", meaning that he anticipated that the DPP would either prosecute the matter, or it would be returned to the New South Wales Police for prosecution. At that time, a decision regarding the charges had not been made by an appropriate delegated solicitor of the DPP. Mr Clayton stated that on 15 June 2017, Sequence 5 was filed by the police and on that date, at the Parramatta Local Court, the presiding Magistrate ordered that the DPP inform the Court as to whether an election would be made in any sequence on or by 6 July 2017.
8. Mr Clayton deposed to the fact that on 6 July 2017, pursuant to that order, a solicitor informed Magistrate Keady that the DPP was electing to prosecute Sequences 3 and 5, and that Sequences 1, 2, and 4 were withdrawn.
9. On 31 October 2017, the plaintiff filed an application in the Local Court seeking a permanent stay of Sequence 5 and an order that leave not be granted in respect of Sequence 3 because of non-compliance with s 263 of the Criminal Procedure Act 1986 (NSW).
10. That application was heard by her Honour Magistrate Price on 24 November 2017 and judgment given on 7 December 2017. The transcript of judgment shows that immediately after judgment, then counsel for the plaintiff requested that the proceedings be adjourned to late January as, "we will be filing a Supreme Court appeal application".
11. Either on that date or on 21 December 2017, the committal hearing date of 16 March 2018 was fixed.
12. The transcript of the hearing and judgment is said by Mr Malouf not to have become available until 22 February 2018.
13. On Monday 12 March 2018 an application to vacate and adjourn the committal hearing was filed in the Parramatta Local Court.
14. On Tuesday 13 March 2018, an application for judicial review of Magistrate Price's refusal to grant the permanent stay was filed in the Supreme Court. In addition to seeking judicial review pursuant to s 69 of the Supreme Court Act and appeal pursuant to ss 53 and 55 of the Crimes (Appeal and Review) Act 2001 (NSW), the summons sought interim relief in the nature of injunction preventing the Local Court from proceeding with the committal hearing.
15. The Summons was given a return date of 22 March 2018. It would have been evident at the moment this return date was given that the Supreme Court would not have opportunity to consider the interim relief sought prior to the committal hearing date set for 16 March 2018.

The application to vacate the committal proceeding

1. The application to vacate the committal proceeding was filed very late, just three clear working days before the date for hearing. The application was heard on 15 March 2018, the day before the date fixed for the committal hearing to proceed. In support of the application, a number of arguments were set out in written submissions. A number of these arguments were put again before me as reasons why I should grant the injunction sought in the notice of motion.
2. The arguments included that a summons to the Supreme Court had been "filed today" (inaccurately as the Summons was not filed until the next day) and that the subject matter should be "preserved" pending the appeal. It was submitted that the plaintiff was not in custody, there was no urgency from an evidentiary or other perspective, and that the delay is "entirely referable" to the Crown's conduct, including a belated election after declining to do so in the first instance.
3. It was stated that the appeal is "strongly arguable", Magistrate Price's approach to s 263(2) was wrong and not supported by the express wording of the section and that no question of fragmentation of criminal proceedings arises because the trial is yet to commence and there has been no committal. The question to be litigated on the appeal in the Supreme Court will determine whether any trial on indictment should occur. It is common for interlocutory orders to be appealed and trials or hearings adjourned pending resolution of those proceedings. If the committal hearing is not vacated and adjourned, then subject to interim relief being granted by the Supreme Court, the plaintiff will need to expand his judicial review application to encompass any order for committal and this will complicate and potentially prolong the Supreme Court proceedings "in a way that is undesirable".
4. It was argued that if the committal is not vacated and adjourned, the plaintiff has to seek interim relief from the Supreme Court which will be costly, and it is unjust to "foreclose" the plaintiff's right to test the correctness of the rulings made by committing him for trial, which is "the very thing the appeal seeks to avoid" and the balance of convenience overwhelmingly favours the matter being adjourned pending the appeal.
5. The application was opposed by the DPP. Short written submissions identified a number of bases for opposition, namely that the Crown were ready for the committal and had been since the election on 6 July 2017, the Crown had been ready on 31 October 2017 but on the application of the plaintiff, the date was vacated, the application to vacate ignores the finding of the Local Court of 15 June 2017 regarding s 263(1) and the appeal is without merit.
6. The application was rejected by Magistrate Still on the basis that the grounds were not set out, that it was too late, that there was no compelling reasons advanced, that Court review was made on 7 December 2017, there was no explanation for the delay in making the application, and there was no stay in place.

Late filing of summons in the Supreme Court seeking judicial review of December 2017 decision

1. As set out in [24] above, the obvious urgency of the interim order was not drawn to the Registry's attention so an earlier return date could be allocated or urgent referral or notice to the duty judge could be given. The submission was made that it was the belief of the legal representatives of the plaintiff that before asking this Court to consider the interim order it was necessary first to determine whether the Local Court would accede to a vacation and adjournment application.
2. This asserted necessity makes the late filing of the application to vacate in the Local Court even more inexplicable.
3. No proof of service of the Summons filed on 13 March 2018 was tendered and I do not know whether the first defendant, the Local Court has had notice of the Summons and the interim order to be sought or not. There was no doubt that the Local Court was not served with the Notice of Motion until after 5 pm on 15 March 2016 after I made inquiries with counsel about why service of the motion had not been effected.
4. What the interim relief part of the Summons shows clearly is that as at the time of its filing the plaintiff was well aware of his intention and/or need to have the committal proceedings postponed pending determination of the final relief, but no effort was made to bring it to the attention of the duty judge or any judge of this Court.
5. A cynical analysis may support the conclusion that a deliberate forensic decision was made to file a late application to vacate the hearing date in the Local Court using the late filed Summons as the basis for derailing the Local Court committal proceedings, particularly given the view expressed on the Court record on the very day of judgment that an appeal to the Supreme Court would follow hence the need to give a January return date. Only when the Local Court vacation application failed was this Court approached at the very last minute to deal with the altered application for interim relief.
6. Whatever the analysis applied, in going about the application in this way, the defendants were not given a reasonable opportunity to prepare and present legal argument in an orderly fashion, although the quality of the assistance I received from Ms Kelly was remarkably good in the circumstances. There was no appearance on behalf of the Local Court because the Notice of Motion was not served upon them prior to 5 pm on 15 March 2018. I was encouraged by counsel for the plaintiff to accept that the Local Court "never" does anything other than file a submitting appearance in "these matters". Whether that is the case or not, a party affected by orders being sought in a notice of motion is entitled to be served with the motion and affidavit so a decision can be made whether to appear or not. Despite this lack of professional courtesy, I heard and determined the matter in the absence of service upon the Local Court because of the urgency created by the lateness of the application.

Relevant legislation and legal principles

1. Section 66 of the Supreme Court Act 1970 (NSW) provides as follows: 66 Injunction … (4) The Court may, at any stage of proceedings, on terms, grant an interlocutory injunction in any case in which it appears to the Court to be just or convenient so to do.
2. The matters to be taken into account in exercising this discretion are well known and broadly require a consideration of whether the balance of convenience is in favour of it being granted. I need to consider whether there is irreparable harm to the plaintiff if the injunction is not granted, the delaying effect or prejudice to the defendant and whether circumstances indicate that the status quo would be overturned or maintained if it is not granted.
3. It was not contested that ss 35 and 55 of the Crimes (Appeal and Review) Act provide a basis for appeal and s 69 of the Supreme Court Act provides a basis for the judicial review sought by the plaintiff in the Summons returnable on 22 March 2018. Ms Kelly did however submit that leave was required because the appeal should have been filed within three months and was filed 6 days late.
4. The decision of her Honour of 7 December 2017, the subject of the summons, centres upon s 263 of the Criminal Procedure Act 1986 (NSW) which provides as follows: 263 Time for making election (1) An election to have an offence dealt with on indictment must be made within the time fixed by the Local Court. (2) An election may, with the leave of the Local Court, be made after the time so fixed if the Court is satisfied those special circumstances exist. (3) However, an election may not be made after the following events: (a) in the case of a plea of not guilty - the commencement of the taking of evidence for the prosecution in the summary trial, (b) in the case of a plea of guilty - the presentation of the facts relied on by the prosecution to prove the offence. (4) An election may be made on behalf of a corporation by a person appearing as a representative of the corporation. (5) The jurisdiction of the Local Court under this section may be exercised by a registrar.
5. Section 263 is part of Chapter 5 of the Criminal Procedure Act which deals with Summary disposal of indictable offences by Local Court (ss 258-273). As observed by Johnson J in Hall v R [2015] NSWCCA 298 at [39], "there is an absence of authority concerning this practical provision which is exercised with some regularity". Under the heading "proper construction and application of s.263(2)", Johnson J makes some observations regarding construction and application, although noting these were not necessary to dispose of that particular application. In that context the matters discussed fall into the category of "considered dicta" of the Court of Criminal Appeal and are accordingly binding upon me.
6. Johnson J refers to the relevance of the Local Court Practice Notes regarding nominated times fixed for the purpose of s 263(1) and makes this point in [44]. The statute does not state what is required for s.263 "election". There is no statement that an election is not made until it is communicated to the Local Court and/or the defendant. At the least, however, there is an implied requirement that an election will be communicated promptly to the defendant and the Local Court, to allow it to be noted that compliance with s.263(1) has occurred.
7. Johnson J also makes the point in [64] that: This Court has determined that a refusal of leave under s.263(2) Criminal Appeal Act 1986 is not an impediment to the Crown bringing an ex officio indictment in the District Court charging the offences which were the subject of the s.263(2) refusal: Iqbal v R [2012] NSWCCA 72 at [15]-[24]. In these circumstances, the utility in a challenge to a s.263(2) decision is questionable.
8. Submissions of the plaintiff
9. Counsel for the plaintiff submitted that there is at least an arguable case on the construction of s 263. He said that there is no prejudice to the DPP or at least the only prejudice is delay. He submitted that the status quo is served and the dictates of justice and balance of convenience all favour the injunction issuing, because the status quo is only preserved if no committal proceedings go ahead until the appeal has been heard.
10. He argued that there has been an error of law on the part of the Magistrate who should not have refused to grant the stay of proceedings in December 2017. He argued that it is in the interests of justice and the balance of convenience dictates that the injunction sought should be granted because the subject matter of the appeal relates to the committal, and if the appeal succeeds, there is no jurisdiction to commit for trial on Sequence 3 and that means the matter could proceed to summary trial. Further, if there is no jurisdiction to commit for trial on Sequence 3, then Sequence 5 amounts to a multiplicity of proceedings and is an abuse of process.
11. Counsel for the plaintiff submitted that if the Crown proceeded to ex officio indictment in these circumstances, given the length of time, and that the Crown would be out of time, that would be an abuse of process. He argued that there was a longstanding line of authority (although the only case he referred me to was Iqbal) that proceeding this way "can be an abuse of process". If the Crown proceeded this way in delaying to elect in the way it did, and given the history of the matter then tried to "bypass" the committal process and seek to "circumvent" what occurred in the Local Court, that would be an abuse of process.
12. The Crown does not have an "untrammelled right" to seek and pursue the plaintiff in the way it has. Any delays created by the Crown's conduct that affect the plaintiff are "qualitatively different" to delays created by the plaintiff in his conduct and decision-making. The plaintiff has a right to seek to avoid a trial on indictment because it is more expensive than a summary trial. The plaintiff also has a right to seek to avoid the exposure to the greater penalties that are available if the Crown is permitted to proceed on indictment. Sequence 5 is simply a new charge on the same information pursuant to which the Crown seeks to proceed and was not done to lay a charge in relation to a more serious offence.
13. There is, at the very least, an arguable case that the DPP has behaved in a way that is potentially an abuse of process.
14. In terms of delay in filing the Summons (and this application), counsel relied upon the explanation that the transcript of the hearing and judgment was not available until 22 February 2018 and it took three weeks to draft the summons in the Supreme Court.

Submissions made on behalf of the DPP

1. As a matter of principle, this Court should be loath to interfere with the criminal proceedings in the Local Court: Woodhouse v DPP [2015] NSWCA 40 at [25]: There is a long line of authority to the effect that the power of judicial review of decisions of inferior courts should not be exercised so as to interfere with the orderly conduct of criminal proceedings. In Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, Kirby P summarised (at 599-600) the principle as follows: "The High Court of Australia and this Court have repeatedly emphasised the undesirability of interference - whether by declaration or otherwise - in the conduct of criminal proceedings. Such interference is reserved to exceptional or special cases: see Sankey v Whitlam (1978) 142 CLR 1 at 22, 23, 24; Barton v The Queen (1980) 147 CLR 75 at 104; Lamb v Moss (1983) 76 FLR 296 at 307-308; 49 ALR 533 at 545; Bacon v Rose [1972] 2 NSWLR 793 at 797: Cain v Glass (No 2) (1985) 3 NSWLR 230 at 235. More than lip service must be given to injunctions of this kind. They are based upon the high public interest in the orderly conduct of criminal proceedings, which include the sentencing of persons convicted following a plea. They rest upon the avoidance of interruption of such proceedings by those who have access to funds and a determination to manipulate criminal prosecutions. The availability of appellate procedures following conviction and sentence and the possibility that many problems disappear, or are resolved, at first instance if only cases are allowed to take their ordinary course provide further reasons to restrain an over-enthusiastic response to interlocutory claims for judicial review of criminal proceedings." See also Sergi v Director of Public Prosecutions (Court of Appeal (NSW), 10 September 1991, unrep), (p 3): The wide powers of this Court to defend its process by way of a stay and other orders is well established. They are derived from the Supreme Court Act 1970 and from the inherent jurisdiction of the Court of Appeal as part of the Supreme Court. See Alexander and Ors v Cambridge Credit Corporation Ltd (Receivers Appointed) and Anor (1985) 2 NSWLR 685, 690 (CA). The categories of cases in which the relief will be provided are not closed. Cf Tringali v Stewardson Stubbs and Collett Ltd (1966) 66 SR (NSW) 335, 344 (CA). In the context of stays to defend proposed applications for special leave to appeal to the High court of Australia, the Court has drawn a distinction between cases which involve the criminal or other public law and cases of a purely private and civil character. Contrast John Fairfax and Sons Ltd v Kelly (No 2), (1987) 8 NSWLR 510 (CA); Sibuse Pty Ltd v Shaw (No 2) (1988) 13 NSWLR 125, 132 (CA). The distinction rests upon the public interest in the due administration of the criminal law which the Court will be vigilant to defend.
2. The approach taken by the plaintiff with the last-minute applications both for vacation of the committal and the application to this Court for an injunction, are matters that should count against the plaintiff. In particular, the way this has been pursued by the plaintiff highlights the fragmentation caused by these last minute approaches and this should be avoided.
3. The three week delay between the obtaining of the transcript on 22 February 2018 and the filing of the Summons is not explained simply by the need for the appeal document to be prepared. Other things could have been done and were not done.
4. The appeal itself is filed out of time as r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) requires the appeal to be filed within three months, that is 7 March 2018, so it is six days out of time.
5. It is said from the bar table that there was an extension of time obtained from the Local Court pursuant to s 53 which deals with part of the final relief sought in the Summons, however nothing was offered by way of evidence of this or submissions as to why the proceedings were not out of time in terms of the s 69 judicial review.
6. Current proceedings being on foot in both the Supreme Court and Local Court should be avoided. Even if the matter is committed to the District Court for hearing, the plaintiff has other avenues of appeal. There is no irreparable damage caused to the plaintiff the injunction is not given.
7. The merits of the substantive appeal are not clear. The conclusion of her Honour that the election was made in time is an appropriate one. The plaintiff would need leave to pursue the s 53 appeal and also needs leave for judicial review.
8. Hall v R [2015] NSWCCA 298 addressed the potential lack of utility to challenging decisions made by magistrates regarding s 263 of the Criminal Procedure Act. This issue goes both to the substantive proceeding and the prospects of success.
9. There are good arguments against success of the Summons. There are real prospects that leave to appeal would be refused due to lack of utility.
10. Iqbal v R [2012] NSWCCA 72 and Osman v Director of Public Prosecutions [2016] NSWSC 1222 illustrate the lack of utility argument and that the filing of an ex officio indictment (if the plaintiff was not committed for trial) would not necessarily, contrary to the submissions of counsel for the plaintiff, amount to an abuse of process.
11. A finding of a bill on an indictment in the District Court would make the Crown's argument regarding lack of utility stronger, particularly given it is a statutory appeal subject to leave, so whilst the Court could still of course entertain it, and the fact that the committal proceedings have gone ahead does not mean the Court could not, the Crown's arguments regarding lack of utility would become stronger.
12. If an indictment is filed by the DPP and the proceedings go ahead in the District Court, the plaintiff still has his right of appeal to the Court of Criminal Appeal regarding both conviction and sentence.
13. In response to suggestions by counsel for the plaintiff that if the Crown adopted a process of taking out an indictment in the District Court in this matter, it would be an abuse of process, Iqbal v R is a case that shows this is not so. The Court would need to look at the order actually made by the Magistrate.
14. In response to a submission made by counsel for the plaintiff that the Crown "rarely" makes a positive decision to elect on the day of the hearing in relation to a strictly indictable charge laid and withdrawn and then two months later changes its mind and seeks a special circumstances declaration, Ms Kelly noted that s 263 shows that potentially election is available right up to the time the evidence commences on a summary hearing and the cases of both Hall and Iqbal indicate that these approaches do occur and the reason is that the Crown retains a right to elect so that it can maintain power to do what it considers appropriate when the circumstances require.

Determination

1. I was not persuaded that it was an appropriate exercise of my discretion to grant the orders sought.
2. There is nothing irretrievable suffered by the plaintiff if the injunction is not granted. The plaintiff's own submissions to the Local Court in support of the application to adjourn make the point that there would need to be perhaps an expanded Summons seeking leave to appeal from the refusal to grant the stay, not that the position is forever irretrievably altered.
3. As stated by Campbell J in Woods v DPP; Fantakis v DPP (No 2) [2016] NSWSC 448 at [3], "When one speaks of the balance of convenience in this context, it is usually necessary to show that the benefit of the remedy sought in the Supreme Court is likely to be rendered nugatory if the stay is not granted".
4. Counsel for the plaintiff conceded that the proceedings could be rendered nugatory and relied upon the submissions of Ms Kelly that the argument of lack of futility would be stronger, in her view, if the committal had already proceeded. As explored in oral argument, whether that view is shared is a matter for the judge hearing the Summons.
5. I accept the submissions made by Ms Kelly regarding Iqbal and Hall that there is a strong argument that the Summons, dealing as it does with an appeal regarding the application of s 263 has a strong prospect of failure on the basis of a finding of lack of utility. I find that this is particularly so given the cogency of the CCA's comments (binding dicta) in Hall that I set out in [41] of this judgment. That position is not materially affected by whether the committal hearing has proceeded or not.
6. Whilst there is no evidence of intention by the DPP to file an ex officio indictment, the option is clearly available and Iqbal v R [2012] NSWCCA 72; Osman v Director of Public Prosecutions [2016] NSWSC 959; and Hall v R [2015] NSWCCA 298 show that such action is unlikely to be found to be an abuse of process. This is another arm to the potential futility argument.
7. The plaintiff's delay in seeking the injunction remains a large stumbling block. The delay was not adequately explained. The part of her Honour's judgment which is the subject of the appeal is very confined. Her Honour's decision was short and dealt succinctly with an interpretation of s 263 which is maintained by counsel for the defendant to have been unarguably wrong on both bases expressed by her Honour. The asserted error was sufficiently clear to counsel appearing on 7 December 2017 that it was put on the record that an appeal to the Supreme Court would follow. I do not accept that a summons could not have been filed and appropriate steps taken in the intervening four months to deal with the matter in a way that did not, at the last minute, involve an attempt to derail the committal hearing.
8. The need for this injunction is premised on an argument that the status quo needs to be protected. The status quo asserted by counsel for the plaintiff is underpinned by an assumption, amongst other things, that the decision of her Honour is inarguably wrong and therefore what is to be protected is the plaintiff's right to pursue technical arguments to prevent the DPP from exercising its s 263 options. I doubt that this is a correct interpretation of the status quo in the circumstances of this case. Even if am wrong about that, the question of what is in the interests of the administration of justice is an important factor to consider.
9. Exercising this court's injunctive power to prevent a prosecuting authority proceeding with a hearing listed some four months prior is a significant step. The plaintiff's legal representatives consented to the matter proceeding down the course to a committal hearing listed four months ahead and took no active steps to alter that course until very late, namely less than one week before the committal.
10. The timing of the filing of the applications to vacate the committal hearing date in the Local Court and the filing of the Summons within the same working week as the committal hearing is suggestive of a deliberate forensic decision having been taken in an attempt to force a pre-emptive outcome. Even if that is not the case, when a plaintiff is seeking an indulgence from this Court to interfere directly with the processes of another court and the processes of the criminal law, delay is relevant not only to the Court's general discretion to grant or refuse such relief, it is particularly relevant to the consideration of the balance of convenience. As stated by Campbell J in Capgemini US LLC v Case [2004] NSWSC 674 at [40]: "If interlocutory relief is to be sought, it should always be sought promptly: [citation omitted]. The court is always entitled to use, as a litmus test of the seriousness of the infringement of a plaintiff's rights which is occurring, how fast the plaintiff reacts to the infringement of its rights. It is not only as an example of the equitable doctrine of laches that delay is relevant on an application for an interlocutory injunction; it is also an admission by conduct about how serious the infringement of the plaintiff's rights is. Thus, it is a matter which goes to the balance of convenience and not merely to the question of whether there is a serious question to be tried which might be met by a defence of laches at the trial."
11. I do not accept that the refusal of the injunction sought will make it impossible for the plaintiff to pursue his rights under the Summons. The fact that he undergoes a committal hearing does not make that case for judicial review any better or worse. As conceded by counsel for the plaintiff, it may require an adjustment to the Summons to add further relief and may increase the complexity of that application, a complexity that could have been avoided if the Summons had been filed in a timely fashion.
12. In all of these circumstances, in the exercise of discretion and on consideration of the balance of convenience, I decline to grant the interlocutory relief sought by the plaintiff. Accordingly, the plaintiff's application for interlocutory relief is dismissed.

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. Decision last updated: 27 April 2018