Director of Public Prosecutions (NSW) v Safetli

[2015] NSWLC 13

Local Court

New South Wales

Medium Neutral Citation:	Director of Public Prosecutions (NSW) v Safetli [2015] NSWLC 13
Decision date:	27 May 2015
Jurisdiction:	Criminal
Before:	Favretto LCM
Decision:	A magistrate has no power in committal proceedings to anticipate a stay of proceedings by the trial judge and consequently discharge the accused on the grounds of insufficient evidence.
Legislation Cited:	Criminal Procedure Act 1986 (NSW), ss 64, 91
Cases Cited:	Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 Grassby v The Queen [1989] HCA 45; 168 CLR 1 Jago v District Court of NSW & Ors (1989) 87 ALR 577 Lacey v Attorney-General (QLD) [2011] HCA 10; 242 CLR 573 R v Mohi [2000] SASC 384; 78 SASR 55
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions (NSW) (Prosecution) B Safetli (Defendant)
Representation:	Director of Public Prosecutions (NSW) (Prosecution) Nyman Gibson Miralis (Solicitor for the Defendant)
File Number(s):	2014/63645
Publication restriction:	Nil

Judgment

1. These are committal proceedings where the accused is charged with the offence of accessory after the fact to murder (between 3 September 2009 and 13 October 2009, being the murder of Michael McGurk on 3 September 2009) and the offence of conceal serious indictable offence (between 27 July and 8 August 2010 being the intimidation of Kimberley McGurk).

2. The Director of Public Prosecutions (NSW) ("DPP") relies upon a tendered brief of evidence and the oral evidence of two witnesses whose statements were also tendered. Pursuant to consent orders under s 91 of the Criminal Procedure Act 1986 (NSW) ("the Act"), Senad Kaminic and Fortunato (“Lucky”) Gatellari have both given evidence.

3. At the close of the DPP’s case the accused submits that he should be discharged, not because there is insufficient evidence in this court, but because there is likely to be a stay of proceedings by the trial judge and, so it is argued, there would in fact be insufficient evidence before a jury. Consequently, if this court is satisfied that a stay of proceedings is likely, then it will not be satisfied under s 64 of the Act that, “...there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence”. The basis of the accused’s application for a stay (by a trial judge) are the following:

1. an abuse of process by the DPP seeking to rely upon an induced statement made by the accused which forms part of the brief of evidence served upon him by the DPP for the committal proceedings;

2. initial promises made to him by officers of the NSW Crime Commission that he would not be charged, that he would be a witness and continued contact with him as a witness; and

3. most importantly, the DPP adopting him as a witness and serving his statement in the brief of evidence against the co-accused: R v Mohi [2000] SASC 384; 78 SASR 55.

4. The proceedings were adjourned for written submissions on the question as to whether any such power was reposed in this court in the committal proceedings before consideration of the evidential basis for a stay application.

Consideration

The accused properly concedes that this court does not retain the power itself to stay committal proceedings following the decision of the High Court in Grassby v The Queen [1989] HCA 45; 168 CLR 1 ("Grassby"). However, the accused relies upon the following sole observations by Deane J (who otherwise agreed with the other Justices) in Grassby where he said at 6:

"If, in the course of committal proceedings, a serious question emerges about whether a prosecution of the accused in the Supreme Court would be stayed by that court as an abuse of its process, the magistrate hearing the committal proceedings is, in my view, neither obliged nor entitled to disregard that question in determining whether a committal order should be made. If the magistrate is of the view that, having regard to all the  evidence, a prosecution in the Supreme Court would be permanently stayed as an abuse of the process of that court, he or she would, in my view, necessarily be of the opinion that a jury would not be likely to convict the defendant of an indictable offence if a committal order were made. That seems to me to be the effect of a literal construction of the words of s 41(6). As a matter of policy, I see no convincing reason for departing from that literal construction. To the contrary, it seems to me to be undesirable that a magistrate should be required to make an order that an accused be committed for a trial which would constitute an abuse of process if it were held. Nor can I see any convincing reason why an accused should be subjected to the anxiety and jeopardy involved in being committed for trial in such circumstances. If the view be taken by the prosecuting authorities that a magistrate is clearly in error in concluding that the circumstances are such that proceedings in the Supreme Court would be permanently stayed, it will remain open to the Attorney-General or the Director of Public Prosecutions to test the matter in the Supreme Court by filing an indictment or, arguably, by proceedings for declaratory relief (see Spautz v Williams [1983] 2 NSWLR 506 at 517).”

5. The DPP responds that from a consideration of the plurality in Grassby and the Court of Criminal Appeal in Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 ("AG v Stuart") a magistrate does not have power to consider the likelihood of a successful stay application by the trial judge when determining whether an accused should be committed for trial pursuant to ss 62 and 64 of the Act. Dawson J, with whom all other Justices agreed (subject to Deane J’s qualification) said at 18 - 19:

"There is no room in the face of these statutory obligations, couched as they are in mandatory terms, for the implication of a discretionary power to terminate the proceedings in a manner other than that provided. Nor is this surprising. True it is that a person committed for trial is exposed to trial in a way in which he would otherwise not be, but the ultimate determination whether he does in fact stand trial does not rest with the magistrate. The power to order a stay where there is an abuse of the process of the trial court is not to be found in the committing magistrate and the considerations which would guide the exercise of that power have little relevance to the function which the magistrate is required to perform. Having regard to the exceptional nature of the occasions upon which the prosecution of an offence will amount to an abuse of the process of the court trying that offence, oppression arising from, and confined to, the committal process itself is difficult to conceive. Indeed, having regard to the inability of a magistrate to stay the trial, it is not possible for him to know conclusively whether the person charged may, having regard to the interests of justice, safely be deprived of the advantage of committal proceedings. No doubt it is possible to conceive of committal proceedings being allowed to be conducted in an oppressive manner. But that is something within the control of the magistrate. Indeed, under sub-s (9) of s 41, which has not yet come into force, a magistrate will have added power for this purpose. Sub-section (9) reads:

'The Justice or Justices may at any stage during the examination or cross-

examination of any witness giving evidence for the prosecution or the defence terminate the examination or cross-examination on any particular matter if satisfied that any further examination or cross-examination on the matter will not assist the Justice or Justices in forming any opinion referred to in subsection (2) or (6).'

Be that as it may, the fact remains that in committal proceedings a magistrate is performing an administrative or ministerial function which is governed by statute and the terms of the statute afford no basis for the implication of any power to dispose of those proceedings by the Imposition of a permanent stay." [Emphasis added]

6. In AG v Stuartthe Full Court considered an appeal against the decision of a magistrate rejecting a claim of public interest immunity to a subpoena because, in part, there was a legitimate forensic purpose to be served, namely to ground a future application to stay proceedings before the trial judge. The basis of the stay was that the accused had been “entrapped”. Hunt CJ at CL (with whom Smart and Studdert JJ agreed) said at 683:

"It is, in any event, no part of a magistrate's function in committal proceedings to concern himself or herself with issues which would normally fall within the discretionary powers of a trial judge or to pre-empt any exercise of the trial judge's discretion: R v Grassby (1988) 15 NSWLR 109 at 118-119; Barron v Attorney-General for New South Wales (1987) 10

NSWLR 215 at 216-218; Moss v Brown [1979] 1 NSWLR 114 at 125. All three cases make the point that committal proceedings do not constitute (and they should not be allowed to develop into) a mini trial in advance of the trial upon indictment.

It was nevertheless submitted by the respondent that the provisions of s 41(6) of the Justices Act 1902 — whereby a magistrate is required to consider whether a jury would not be likely to convict upon the evidence before him — require the magistrate to determine whether or not particular evidence would be rejected by the trial judge. It is thus necessary, it was said, for the magistrate to make a prediction as to how the judge would exercise his or her discretion in relation to that evidence. Reliance is placed upon what was said by Deane J in Grassby v The Queen (at 5-6) as supporting that submission. Deane J was in a minority in that case, and there is no support for his view to be found in the judgments of the majority; if it is to be interpreted in the way for which the respondent contends, what Deane J said is contrary to what both this Court and the Court of Appeal have said in the cases which I have cited and, with unfeigned respect to Deane J, I regard it (so interpreted) as wrong. What s 41(6) requires is the formation of an opinion as to whether, if the evidence remains the same as that before the magistrate, a jury would not be likely to convict. It does not require the magistrate to predict whether the evidence will remain the same, and thus how the trial judge would exercise any discretion in relation to such evidence." [Emphasis added by the DPP].

7. ​The DPP submits that upon consideration of the extract from AG v Stuartthat the Court of Criminal Appeal held that it was not part of a magistrate’s function in committal proceedings to exercise any discretion that a trial judge might exercise in the future and is not limited to the discretionary exclusion of evidence. The DPP notes that Hunt CJ at CL specifically referred to the fact that the accused’s application was properly to be considered as a stay application and the discretionary exclusion of evidence. As the power of a trial judge to stay a prosecution for an abuse of process is also discretionary (Jago v District Court of NSW & Ors(1989) 87 ALR 577) then it is irrelevant to the magistrate’s function to determine whether or not to commit for trial.

8. The DPP further submits that by virtue of s 70 of the Act a magistrate is not permitted to consider whether or not it is likely that a stay of the proceedings for abuse of process will be granted in the trial court. Sections 62 to 70 were inserted in 2001. Section 70 which restates the common law in AG v Stuartprovides that, “A magistrate in committal proceedings may not exclude evidence on any grounds set out in section 90 (Discretion to exclude admissions) or Part 3.11 (Discretions to exclude evidence) of the Evidence Act 1995."

9. In the event that this court were to hold it does have the power to consider the prospects of a stay application it should nevertheless not do so, as given the DPP’s power to file an ex officio indictment the matter is unlikely to be definitively resolved in the Local Court. The practicality the DPP “respectfully” submits is that a more desirable course would be for the issue to be fully considered in the District Court where the Court has the power to stay the proceedings if it is found that there is an abuse of process.

10. The accused responds that AG v Stuart is distinguishable as it concerned an appeal against discretion to exclude evidence and that Deane J’s observations are still highly persuasive.

Determination

11. Relevantly, s 64 of the Act is in almost identical terms as s 41(6) which was considered in Grassby. For present purposes it is useful to set out the various determinations that a magistrate may make in committal proceedings on the question whether an accused ought to be committed for trial or not:

"62   Prosecution evidence and initial determination

(1)  The Magistrate must take the prosecution evidence in accordance with Division 3 and must determine whether the prosecution evidence is capable of satisfying a jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence.

(2)  The Magistrate must discharge the accused person in relation to the offence if, in any committal proceedings, after all the prosecution evidence is taken and after considering all the evidence before the Magistrate, the Magistrate is not of the opinion that, having regard to all the evidence before the Magistrate, the evidence is capable of satisfying a reasonable jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence.

63   Where prosecution evidence sufficient to satisfy jury

(1)  If in any committal proceedings, after all the prosecution evidence is taken and after considering all the evidence before the Magistrate, the Magistrate is of the opinion that, having regard to all the evidence before the Magistrate, the evidence is capable of satisfying a reasonable jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence, the Magistrate must give the accused person an opportunity to answer the charge and a warning in the form prescribed by the rules.

(2)  The Magistrate must proceed to take any statement by or any evidence adduced by the accused person in accordance with Division 4.

(3) If the accused person is not present, the Magistrate may make a decision under section 64 without complying with subsection (2).

(4)  If the accused person is a corporation and the corporation appears by a representative, the representative may answer the charge on behalf of the corporation.

64   Decision about committal

When all the prosecution evidence and any defence evidence have been taken in committal proceedings, the Magistrate must consider all the evidence and determine whether or not in his or her opinion, having regard to all the evidence before the Magistrate, there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence.

65   Committal

(1)  If the Magistrate is of the opinion that there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence, the Magistrate must commit the accused person for trial.

(2)  In the case of an accused person that is a corporation, the Magistrate may, if of that opinion, make an order authorising an indictment to be filed for the offence named in the order or for such other offence as the Attorney General or Director of Public Prosecutions considers proper.

(3)  The making of an order under subsection (2) is taken to be committal for trial.

66   Discharge

If the Magistrate is not of the opinion that there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence, the Magistrate must immediately order the accused person to be discharged in relation to the offence." [Emphasis added].

12. The emphasised words above and more particularly the words “…having regard to all the evidence before the Magistrate" require and mandate a magistrate to either discharge or, after giving an accused an opportunity of being heard, commit the accused for trial depending upon the magistrate’s relevant determination on the evidence before the court as if that is the evidence before the jury. It is upon the present state of the evidence before the magistrate (and consequently the present jury) that the relevant determination must be made as those are the words of the Act (and no other). So much is clear from the words of Dawson J (agreed with by the plurality) when he said, at 19: “...the fact remains that in committal proceedings a magistrate is performing an administrative or ministerial function which is governed by statute”, and Hunt CJ at CL where he said, at 683: “What s 41(6) requires is the formation of an opinion as to whether, if the evidence remains the same as that before the magistrate, a jury would not be likely to convict. It does not require the magistrate to predict whether the evidence will remain the same, and thus how the trial judge would exercise any discretion in relation to such evidence.” [Emphasis added]. Similarly, the Court notes the words of Brennan J, who after stating his agreement with Dawson J said at 4, “From the conclusion that s 41(6) determined the magistrate’s duty, it follows that consideration of the question whether a prosecution of the accused on indictment would amount to an abuse of process was no part of the magistrate’s function."

13. The actual ratio in Grassby and AG v Stuartwould not appear to be, strictly speaking, binding upon this court on the present issue. Nevertheless, the analyses of Dawson J and Hunt CJ at CL are, in this court’s opinion a more considered and measured interpretation to be given to ss 62 - 64 of the Act than the observations of Deane J. For instance, if in fact a magistrate did possess such a power it is unlikely that the magistrate would make the determination under s 64 (s 41(6) as Deane J says) but rather under s 62 as there would likely be no evidence at all. Further, Deane J’s observations are unsupported by the plurality (the implication from the reasons of Dawson and Brennan JJ suggest the contrary) and came under scrutiny in AG v Stuart where Hunt CJ at CL said of them  “I regard it (so interpreted) as wrong.”

14. Given the court’s own construction of ss 62 - 64 of the Act that it must make its determination upon the present state of the evidence before it (and consequently the present jury), it follows that a magistrate has otherwise no duty, function or power to determine whether a trial judge would stay the proceedings.

15. So far as the DPP’s submission is concerned; that by virtue of s 70 of the Act a magistrate is not permitted to consider whether or not it is likely that a stay of the proceedings for abuse of process will be granted in the trial court, that is rejected. Plainly, s 70 only deals with admissibility and does not expressly or impliedly concern itself with a stay of proceedings because of an abuse of process. That distinction was noted by Hunt CJ at CL. In fact, it could be argued to the contrary that the Parliament, when it enacted ss 62-64, imbued with the state of the common law at that time (Lacey v Attorney-General (QLD) [2011] HCA 10; 242 CLR 573 at [43]) chose to specifically legislate only on the exclusion of evidence leaving the present issue to the common law, including the observations of Deane J.

16. The DPP’s further submission is that in the event this court were to determine that it had such a power, it should not exercise the power because of his power of ex officio. The DPP's submission that because it is likely this issue would not be resolved in this court, it should leave it in the interests of “practicality” to the trial judge, is also rejected. To follow such a course would lend itself to this court not discharging its judicial obligations. This court is required to properly exercise its powers and should not deny a party a fair hearing on an issue properly raised, if that be the case.

Favretto LCM

Downing Centre Local Court.

********

Decision last updated: 17 September 2015