Commonwealth Director of Public Prosecutions v Haddad, Daher

[2019] NSWCA 55

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Commonwealth Director of Public Prosecutions v Haddad, Daher & Ors [2019] NSWCA 55
Hearing dates:	26 March 2019
Decision date:	26 March 2019
Before:	Bell P at [1]; White JA at [1]; Brereton JA at [1]
Decision:	Refer to para [17] of judgment.
Catchwords:	CRIME – judicial review – prosecutions brought without requisite consent of Attorney General – effect of failure to obtain consent – jurisdictional error – convictions and sentences set aside
Legislation Cited:	Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth), s 138 Crimes (Appeal and Review) Act 2001 (NSW), s 4 Crimes Act 1914 (Cth), ss 19B, 79, 85 Criminal Code (Cth), s 478
Cases Cited:	Berwin v Donohoe (1915) 21 CLR 1 Bindaree Beef Pty Ltd v Riley (2013) 85 NSWLR 350 Dyason v Butterworth [2015] NSWCA 52 Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 McDonnell v Smith (1918) 24 CLR 409 O’Sullivan v Truth & Sportsman Ltd [1955] SASR 85 R v Angel [1968] 1 WLR 669 Spanos v Lazaris [2008] NSWCA 74 The King v Bates [1911] 1 KB 964 Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8
Category:	Principal judgment
Parties:	Commonwealth Director of Public Prosecutions (Applicant) Anthony Rami Haddad (First Respondent) Mahmoud Daher (Second Respondent) District Court of New South Wales (Third Respondent) Local Court of New South Wales (Fourth Respondent)
Representation:	Counsel: B Narula (Applicant) N Siafakas, solicitor (First Respondent) S J Stanton (Second Respondent) Submitting appearance (Third and Fourth Respondents)   Solicitors: Commonwealth Director of Public Prosecutions (Applicant) Carters Law Firm (First Respondent) AXL Legal (Second Respondent) Crown Solicitor’s Office (Third and Fourth Respondents)
File Number(s):	2019/27227
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: n/a Date of Decision: 28 July 2017 Before: Conlon DCJ File Number(s): 2016/365186

Judgment

1. THE COURT: The Commonwealth Director of Public Prosecutions (“DPP”) seeks declarations and orders by way of judicial review to quash convictions and sentences of the first and second respondents for offences against s 79 of the Crimes Act 1914 (Cth) as in force prior to 29 December 2018 (“the Crimes Act”). The reason for this is that the Attorney General’s consent to the institution of the prosecutions for offences against s 79 was required (Crimes Act, s 85), but was not obtained. The respondents do not oppose the relief sought. That relief should be granted.

2. On 2 December 2016 the first respondent, Mr Haddad, was charged with the unauthorised receipt of official secrets contrary to s 79(6) of the Crimes Act. He pleaded guilty to the offence and was fined $2,000. He appealed to the District Court from the severity of the sentence. On 28 July 2017 the District Court (his Honour Judge Conlon) ordered that Mr Haddad be released under s 19B(1)(d) of the Crimes Act without proceeding to conviction on condition that he enter into a self-recognizance in the sum of $1,000 to be of good behaviour for three years.

3. The second respondent, Mr Daher, was charged with numerous offences on 20 October 2016. Following representations received by the office of the DPP, some charges were withdrawn and substitute charges were laid to which Mr Daher entered guilty pleas in the Local Court. On 25 July 2017, Mr Daher entered guilty pleas to four charges, including two charges of unauthorised communication of or access to official secrets contrary to s 79(3) of the Crimes Act. On 20 March 2018, he entered a guilty plea to an additional charge of unauthorised communication of or access to official secrets contrary to s 79(3) of the Crimes Act.

4. On 29 June 2018, Atkinson LCM sentenced Mr Daher both for the offences under s 79(3) of the Crimes Act and for other offences. These comprised 13 charges against s 478.1(1) of the Criminal Code (Cth) and one charge for an offence against s 138(1) of the Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth). Atkinson LCM specified indicative sentences for the two charges under s 79(3) of the Crimes Act laid in the first set of charges to which Mr Daher pleaded guilty on 25 July 2017, and for the charge laid under that section to which he pleaded guilty on 20 March 2018. Her Honour also stipulated indicative sentences for the other charges. Her Honour imposed an aggregate sentence described as being “18 month sentence of full time imprisonment with a recognisance release order after 9 months, in the sum of $500, to be of good behaviour for a period of 9 months”.

5. Mr Daher lodged a severity appeal with the District Court. At the request of the office of the DPP that appeal has been successively adjourned and is currently adjourned for mention only on 2 May 2019.

The Crimes Act

6. Section 85 of the Crimes Act provided:

“85  Institution of prosecution

(1)     A prosecution under this Part shall be instituted only by or with the consent of the Attorney‑General or of a person acting under his or her direction but a person charged with an offence against this Part may be arrested, or a warrant for his or her arrest may be issued and executed, and he or she may be remanded in custody or on bail, notwithstanding that the consent of the Attorney‑General or a person acting under his or her direction has not been obtained, but no further proceedings shall be taken until that consent has been obtained.

(2)     Nothing in this section shall prevent the discharging of the accused if proceedings are not continued within a reasonable time.”

7. Section 85 was contained in Pt VII of the Crimes Act. Section 79 relevantly provided:

“79 Official secrets

...

(3)    If a person communicates a prescribed sketch, plan, photograph, model, cipher, note, document or article, or prescribed information, to a person, other than:

(a)    a person to whom he or she is authorized to communicate it; or

(b)   a person to whom it is, in the interest of the Commonwealth or a part of the Queen’s dominions, his or her duty to communicate it;

or permits a person, other than a person referred to in paragraph (a) or (b), to have access to it, he or she commits an offence.

Penalty: Imprisonment for 2 years.

...

(6)    If a person receives any sketch, plan, photograph, model, cipher, note, document, article or information, knowing, or having reasonable ground to believe, at the time when he or she receives it, that it is communicated to him or her in contravention of subsection (3), he or she commits an offence unless he or she proves that the communication was contrary to his or her desire.

Penalty: Imprisonment for 2 years.”

8. Section 79 was also contained in Pt VII of the Crimes Act. Hence, the Attorney General’s consent was required for the institution of the prosecutions of Mr Haddad and Mr Daher for offences against s 79.

9. In September 2018 the office of the Commonwealth DPP ascertained that the consents required for the institution of prosecution for offences under s 79 of the Crimes Act had not been obtained in either the matters concerning Mr Haddad or Mr Daher.

10. Initially, the DPP proposed making annulment applications to the Local Court under s 4 of the Crimes (Appeal and Review) Act 2001 (NSW). Such an application was filed in relation to Mr Daher’s convictions. Following the receipt of advice from counsel, the DPP decided to withdraw that application. Instead, the DPP has filed a summons seeking declarations that the Local Court did not have jurisdiction to convict Mr Haddad and Mr Daher of the offences contrary to s 79 of the Crimes Act, did not have jurisdiction to sentence them in relation to those offences, and that the District Court did not have jurisdiction (in the case of Mr Haddad) and does not have jurisdiction (in the case of Mr Daher) to determine their appeals against sentence. Orders in the nature of certiorari are also sought to quash the convictions and sentences imposed and an order in the nature of prohibition is sought to prevent the District Court from proceeding to determine Mr Daher’s appeal against his sentence.

11. As noted above, Mr Haddad and Mr Daher do not oppose the relief sought. It should be recorded that counsel for Mr Daher has stated:

“[He] wishes to have acknowledged both in this Court and in any subsequent proceedings that he did not take any point that would in any way diminish his plea of guilty or for that matter derogate from the plea of guilty when he ultimately comes to be sentenced for these matters, as it is intended that he will be re-charged and when he is so re-charged, will enter a plea of guilty and complete the sentencing proceedings.”

Disposition

12. The helpful submissions provided by Mr Narula of counsel acting for the DPP refer to a consistent line of authority stemming from The King v Bates [1911] 1 KB 964 that in circumstances such as the present, where the consent of the Attorney General was required for the institution of prosecutions, the failure to obtain the consent deprived the court of jurisdiction to deal with the offence charged (The King v Bates at 965; Berwin v Donohoe (1915) 21 CLR 1 at 27, 38; McDonnell v Smith (1918) 24 CLR 409 at 412; R v Angel [1968] 1 WLR 669 at 670; O’Sullivan v Truth & Sportsman Ltd [1955] SASR 85 at 87).

13. The failure to comply with a statutory precondition to the institution and maintenance of the prosecutions amounts to jurisdictional error (Spanos v Lazaris [2008] NSWCA 74 at [15]).

14. There were no appeals to the District Court from the convictions in the Local Court. Mr Haddad’s successful appeal against sentence would preclude any challenge to the Local Court’s sentence until the sentence of the District Court is set aside for jurisdictional error (Wishart v Fraser (1941) 64 CLR 470 at 478; [1941] HCA 8; Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [11]-[14]). Where the order of the District Court following an appeal from the Local Court is quashed for jurisdictional error, and only one conclusion is available as to the outcome of the proceeding in the Local Court, the Local Court’s decision can also be set aside (Bindaree Beef Pty Ltd v Riley (2013) 85 NSWLR 350; [2013] NSWCA 305 at [91]; Dyason v Butterworth [2015] NSWCA 52 at [34]-[35]). That is the position.

15. An extension of time for the filing of the summons for judicial review is required. The reason for delay is explained. The principle of legality must be maintained. The required extension of time should be granted.

16. No party seeks an order for costs.

17. Accordingly, the orders of the Court are:

1. order that the time for the filing of the summons be extended up to and including 25 January 2019.

2. declare that the District Court of New South Wales (“the District Court’) lacked jurisdiction to determine the first respondent’s appeal against sentence in relation to the offence against s 79 of the Crimes Act 1914 (Cth) (“the Crimes Act”) in circumstances where there had been non-compliance with s 85 of the Crimes Act.

3. order that the determination of the District Court of 28 July 2017 in relation to the first respondent in relation to the offence charged under s 79(3) of the Crimes Act be quashed.

4. declare that the Local Court of New South Wales (“the Local Court”) lacked jurisdiction to determine the first respondent’s sentence in relation to the offence against s 79 of the Crimes Act in circumstances where there had been non-compliance with s 85 of the Crimes Act.

5. order that the conviction and sentence of the first respondent by the Local Court on 7 February 2017 for the offence against s 79 of the Crimes Act be quashed.

6. declare that the District Court lacks jurisdiction to determine the second respondent’s appeal against sentence in relation to offences against s 79 of the Crimes Act in circumstances where there has been non-compliance with s 85 of the Crimes Act.

7. order in the nature of prohibition that the District Court be prevented from proceeding to determine the second respondent’s appeal against sentence in relation to the offences against s 79 of the Crimes Act.

8. declare that the Local Court lacked jurisdiction to convict and sentence the second respondent in relation to the offences of which he was charged against s 79 of the Crimes Act in circumstances where there had been non-compliance with s 85 of the Crimes Act.

9. order that the conviction and sentence of the second respondent by the Local Court in relation to offences contrary to s 79 of the Crimes Act be quashed.

10. no order as to costs.

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Decision last updated: 26 March 2019