El-Ali v Commonwealth Director of Public Prosecutions and the Local Court of NSW (No 2)

[2015] NSWSC 1134

Supreme Court

New South Wales

Medium Neutral Citation:

El-Ali v Commonwealth Director of Public Prosecutions and the Local Court of NSW (No 2) [2015] NSWSC 1134

Hearing dates:

10 August 2015

Date of orders:

19 August 2015

Decision date:

19 August 2015

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

The order granting a stay of the proceedings against the plaintiff in the Local Court is vacated.

The proceedings in this Court are dismissed.

The plaintiff is to provide written submissions, not exceeding two pages in length, as to the question of costs by 4:00pm on 27 August 2015.

The first defendant is to respond by providing submissions, not exceeding two pages in length, by 4:00pm 2 September on 2015.

Catchwords:

CRIMINAL LAW – Statutory construction – Director of Public Prosecutions Act 1983 (Cth) s. 6(1)(m) – Power of the Commonwealth Director of Public Prosecutions to prosecute offences against laws of the State of NSW where charges have been laid by some other person – Whether the power of the Commonwealth Director to prosecute charges for offences against a law of a State is limited to prosecuting those charges which the Commonwealth Director himself has brought

  WORDS AND PHRASES – “institute and carry on” – “carry on” – “conduct”

Legislation Cited:

Acts Interpretation Act 1901 (Cth)
Crimes Act 1900 NSW

Cases Cited:

Australian Securities Commission v Marlborough Gold Mines Limited [1993] HCA 15; (1993) 177 CLR 485
Dexter v R [2004] HCA Trans 229
El-Ali v Commonwealth Director of Public Prosecutions and the Local Court of NSW [2015] NSWSC 671
Farah Constructions Pty Limited and ors v Say-Dee Pty Limited [2007] HCA 22; (2007) 230 CLR 89
Nanevski v Haskett [2006] NSWSC 1114
R v Dainer and ors; Ex parte Pullen (1988) 78 ACTR 25
R v Dexter [2002] QCA 540
Raymond v Attorney-General [1982] QB 839
Tez v Longley [2004] NSWSC 74; (2004) 142 A Crim R 122

Texts Cited:

Statutory Interpretation in Australia: D C Pearce and R S Geddes

Category:

Principal judgment

Parties:

Khoder El-Ali – Plaintiff

Representation:

Counsel:
Mr P Lange - Plaintiff
Mr P Neil SC – First Defendant
Submitting appearance – Second Defendant

Solicitors:
Hanna Legal - Plaintiff
Commonwealth Director of Public Prosecutions – First Defendant
Crown Solicitor for NSW – Second Defendant

File Number(s):

2015/188030

Publication restriction:

Nil

Judgment

INTRODUCTION

1. On 5 June 2015 I dismissed an application made by the plaintiff for an order, pursuant to s. 53(3)(b) of the Crimes (Appeal and Review) Act 2001, that he be granted leave to appeal against a decision of Magistrate Favretto delivered on 16 December 2014 in the Local Court: El-Ali v Commonwealth Director of Public Prosecutions and the Local Court of NSW [2015] NSWSC 671. I also dismissed the plaintiff’s application for relief under s. 69 of the Supreme Court Act 1970 (NSW).

2. When the matter was previously before me one of the submissions advanced on behalf of the plaintiff was that the Commonwealth Director of Public Prosecutions (“CDPP”) did not have the power to prosecute the plaintiff for offences against NSW legislation because the relevant charges had been laid by someone other than the CDPP. In circumstances where I ultimately decided that the relief sought by the plaintiff was not available, it was not necessary for me to consider the issue of the extent of the DPP’s powers.

3. On 26 June 2015, following delivery of my previous judgment, the plaintiff commenced the present proceedings seeking:

1. an order that the CDPP be restrained from further carrying on the committal proceedings against the plaintiff; and

2. a declaration that the CDPP has no power under the Director of Public Prosecutions Act 1983 (Cth) (“the Act”) to carry on the committal proceedings against the plaintiff.

4. In support of the orders sought, the plaintiff relies principally upon the submission which was previously made and which is set out in [2] above. The orders sought by the plaintiff are opposed by the CDPP who is named as the first defendant. The second defendant has filed a submitting appearance.

5. When the parties came before me on 10 August 2015 it was agreed that I would determine the matter on the basis of:

1. the written submissions filed in the previous proceedings;

2. the oral submissions made at the previous hearing on 13 March 2015; and

3. the further written submissions recently filed by each of the parties.

THE RELEVANT BACKGROUND

6. The background to the matter is set out in full at [4]-[19] of my previous judgment. In the circumstances, it is appropriate that I set out those paragraphs again:

THE CHARGES AGAINST THE PLAINTIFF

[4] The plaintiff has been charged with an offence (“the Commonwealth offence”) of conspiring to import tier two goods contrary to s. 11.5 of the Criminal Code 1995 (Cth) (“the Code”) and s. 233BAB(5) of the Customs Act 1901 (Cth).

[5] He has also been charged with the following (“the State offences”):

i. conspiring to possess unregistered firearms contrary to s. 51D(2) of the Firearms Act 1996 (NSW);

ii. unlawfully selling firearms contrary to s. 51B(1) of the Firearms Act 1996 (NSW); and

iii. participating in a criminal group contrary to s. 93T(1) of the Crimes Act 1900 (NSW).

[6] The entirety of the charges against the plaintiff involve the alleged importation, possession and supply of 140 Glock pistols. Two other persons, Ahmed Karnib (“Karnib”) and Andrew Botros (“Botros”) have also been charged with offences arising out of the same circumstances. In short, the case against the plaintiff is that he arranged for the purchase, delivery and importation into Australia of firearms, firearm parts and firearm magazines. On the Crown case, there were 21 successful importations into Australia. However, only a proportion of the pistols which are said to have been imported have been recovered.

THE PROCEDURAL HISTORY

[7] In light of the issues raised by the plaintiff, it is necessary for me to briefly recount the procedural history of the proceedings in the Local Court.

[8] The charges against the plaintiff came before the Local Court on various occasions between 14 March 2012 and 5 February 2013, during which time they were progressively adjourned to allow the completion of service of the brief of evidence. On the majority of those occasions there were separate appearances on behalf of the CDPP (in respect of the Commonwealth offence) and the NSW Director of Public Prosecutions (“the NSWDPP”) (in respect of the State offences).

[9] On 5 February 2013 there was a single appearance by Mr Powell, solicitor, on behalf of the CDPP. On that occasion Mr Powell informed the court as follows:

“The Commonwealth Director of Public Prosecutions had taken over the conduct of the prosecution of the existing State offences from the Office of the Director of Public Prosecutions for the State of New South Wales and the Commonwealth Director of Public Prosecutions has elected to prosecute the existing State offences on indictment.”

[10] The circumstances in which the CDPP came to take over the prosecution of the State offences emerge from correspondence between the CDPP and the NSWDPP. On 16 May 2012 Mr Pickering SC, the Deputy NSWDPP wrote to the then CDPP, Mr Craigie SC (as his Honour then was) in (inter alia) the following terms (CB 49-51):

“The defendants, Khoder EL ALI, Ahmed KARNIB and Andrew BOTROS are each charged with the following offences:

Intentionally import prohibited tier 2 goods: s. 233 BAB(5), Customs Act 1901 (Cth) (maximum penalty:10 years);

possess more than 3 unregistered firearms: s. 51D(2), Firearms Act 1996 (NSW) (maximum penalty: 20 years; standard non-parole period 10 years).

unlawfully selling firearms on an ongoing basis: s. 51B(1), Firearms Act 1996 (maximum penalty: 20 years; standard non-parole period 10 years).

participate in a criminal group: s. 93T(1), Crimes Act 1900 (NSW) (maximum penalty: 5 years).

…

EL ALI is also charged with 15 offences of providing a false or misleading application under s. 70 of the Firearms Act 1996 (NSW), which carries a maximum penalty of 5 years imprisonment when the application does not relate to a prohibited firearm or pistol. Those charges are currently with police prosecutors and have been referred to my Office for consideration of election. They relate to allegations that EL ALI provided false information to the Firearms Registry in connection with applications for permits to acquire firearms.

[REDACTED]

For the following reasons, I am of the view that it would be appropriate for your office to have conduct of the prosecution of all charges, Commonwealth and State, against each of the defendants.

[REDACTED]

I would be grateful for your views on the proposed course at your earlier (sic) convenience. If you agree to your Office conducting the prosecution of all charges, pursuant to the Instrument of Delegation signed on 22 September 2011, I consent to your Office conducting the prosecution of the defendants for the NSW charges and I elect for the charges under s. 70 of the Firearms Act 1996 against EL ALI being dealt with on indictment.”

[11] By letter of 24 January 2013, the then Senior Assistant Director of the CDPP, Ms Ellen McKenzie, wrote to Mr Pickering SC in (inter alia) the following terms:

“I write to inform you that, having completed a review of the brief of evidence, it has been decided to accede to your request.

It is proposed now to seek advice from senior counsel as to the appropriate charges to be preferred against each accused. This office will be in further contact with you in due course in relation to any issues that arise in respect of the disposition or continuation of any State charges.”

THE RELEVANT INSTRUMENTS OF APPOINTMENT

[12] On 6 December 2012 the then Governor-General for the Commonwealth of Australia, Her Excellency the Honourable Dame Quentin Bryce, approved a recommendation made by the then Attorney-General for the Commonwealth of Australia, Ms Nicola Roxon MP, that Mr Robert Bromwich SC be appointed as the Commonwealth Director of Public Prosecutions for a period of 5 years commencing on 17 December 2012. The instrument of appointment was signed by the Governor-General on 6 December 2012.

[13] On 2 January 2013, pursuant to the provisions of the Director of Public Prosecutions Act 1983 (Cth) (“the CDPP Act”) the acting Attorney-General of the Commonwealth, Jason Clare, signed a consent in the following terms:

“I, Jason Clare, acting Attorney-General of Australia, pursuant to s. 6(1)(m) of the Director of Public Prosecutions Act 1983 HEREBY CONSENT to ROBERT BROMWICH SC holding appointments to prosecute offences against the laws of each and every State.”

[14] On each of 6 February 2013, 12 June 2013 and 25 August 2014 Mr Lloyd Babb SC, the NSWDPP, signed separate instruments of delegation, the effect of each of which was to delegate, to nominated persons, certain of his functions and responsibilities. In the schedules accompanying each of those three instruments Mr Bromwich SC was one of the persons nominated. Each schedule was in (inter alia) the following terms:

“I Lloyd Adam Babb SC, the Director of Public Prosecutions for the State of New South Wales hereby:

…

Delegate to the persons listed in the Schedule who have been approved by the Attorney General for the State of New South Wales, my functions and responsibilities;

To institute and conduct committal proceedings for indictable offences, proceedings for summary offences in any court and summary proceedings for indictable offences that may be dealt with summarily in Local Courts;

To find a bill of indictment in respect of an indictable offence in circumstances where the person concerned has been committed for trial for that indictable offence and to institute and conduct, on behalf of the Crown, the prosecution of such a person on that indictment for indictable offences in the District Court or the Supreme Court.

…

These delegations and orders are to apply during the term of the appointment of the persons named in the Schedule to the Office of the Commonwealth Director of Public Prosecutions or until earlier revocation.

THE COMMITTAL PROCEEDINGS

[15] At all times after 5 February 2013 the CDPP appeared in the Local Court as prosecutor in respect of both the Commonwealth and State offences. Counsel briefed by the CDPP appeared at the committal proceedings which were governed by the provisions of the Criminal Procedure Act 1986 (NSW) (“CPA”).

[16] At the conclusion of the prosecution evidence in the committal proceedings the plaintiff pleaded guilty to the Commonwealth offence. Counsel for the plaintiff then submitted to the Magistrate that the State offences should be dismissed on the basis that the CDPP had no power to prosecute them. In written reasons delivered on 16 December 2014, the Magistrate rejected that submission. He found (inter alia) that the CDPP had the lawful authority to conduct the committal proceedings in respect of the State offences. Immediately following that decision, and without the committal proceedings actually concluding, the plaintiff filed the present summons seeking leave to appeal against the Magistrate’s decision.

THE REASONS OF THE MAGISTRATE

[17] The Magistrate (commencing at [1]) set out the background to the application made on behalf of the plaintiff:

“[1] These are proceedings for the commitment for trial of the accused Khoder El Ali on a Commonwealth importation offence and a number of State firearm offences concerning the unlawful importation and sale of firearms and firearm parts (collectively “the firearms”). The Commonwealth Director of Public Prosecutions (“CDPP”) prosecutes the Commonwealth offence in its own right and purportedly carries on the prosecution of the State offences on behalf of the New South Wales Director of Public Prosecutions (“NSWDPP”).

[2] The accused has been charged along with two others, Ahmed Karnib and Andrew Botros. Generally, all three are charged with the importation, possession and subsequent supply of some one hundred and forty (140) Glock pistols in 2011 and 2012 (by the unlawful importation of the Glock’s (sic) in parts) through the Sylvania Waters Post Office and adjacent business addresses. Both Ahmed Karnib and Andrew Botros took part in a contested committal with the calling of the witness Patrick Fuge (the seller and exporter of the Glock’s and parts) from Germany under s. 91 of the Criminal Procedure Act 1986. The accused did not take part in the s. 91 hearing. Both Ahmed Karnib and Andrew Botros are currently before the District Court awaiting sentence.

[3] The case against the accused Khoder El Ali is that he arranged for the purchase, delivery and ultimate importation into New South Wales, Australia of the firearms, firearm parts and firearm magazines. El Ali used various false identities for the unlawful importation from suppliers in Germany (19 importations via Fuge) and the USA (two importations) by having the firearms broken down into parts for export into Australia. In all twenty one (21) importations were successful into Australia totalling one hundred and fifty (150) Glock pistols. Only eight Glock pistols have been recovered to the Court’s knowledge. One hundred and forty (140) Glock pistol magazines and eight (8) magazine speed loaders were seized on 10 February 2011 which then became the subject of a controlled delivery. Ahmed Karnib arranged for the transport of the firearms into Sydney and either took delivery and possession himself or arranged delivery and possession through Andrew Botros via the Sylvania Waters Post Office.

[4] At the close of the CDPP’s case the accused entered a plea of guilty to the Commonwealth importation offence. The Court notes that the entering of that plea of guilty will by itself, have the consequence of establishing some of the elements of the State Firearm offences; at least the possession of the firearms in New South Wales once the firearms came into Sydney and some were delivered to an address at Dulwich Hill but the majority were delivered at Sylvania Waters.”

[18] The Magistrate then said (at [5]-[6]):

“[5] However, the accused submits that the State offences should be dismissed because the CDPP had no power to carry on the proceedings on behalf of the NSWDPP. As the latter did not appear at the hearing the accused must be discharged: see s. 61(1)(a) of the Criminal Procedure Act 1986, subject to the discretion in s. 6(1)(b) to adjourn the proceedings to allow the NSWDPP to appear.

[6] Alternatively the accused submits that the State Court Attendances (sic) Notices (“CANs”) should be quashed as either “embarrassing” as averred or that the elements of the offences are not proven.

[7] The accused’s latter submissions are to be considered and properly only determined at this stage under s. 62 of the Criminal Procedure Act 1986, namely the legal test “…Whether the prosecution evidence is capable of satisfying a jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence”. That determination requires the court “not consider the probative value of the evidence as a whole, but only that evidence which, if believed and uncontradicted, could be accepted as proof of the Crown case…”: R v Serratore (1999) 48 NSWLR 101 at 127. The CDPP’s case is to be taken at its highest and there is still a case to answer even if the CDPP’s evidence is tenuous, inherently weak or vague: DPP v Elskaf [2012] NSWSC 21 at [47]” (emphasis in original).

[19] The Magistrate went on to consider the respective submissions of the parties before concluding (at [60]):

“For the foregoing reasons the CDPP did have the lawful authority to “carry on” the committal proceedings for the State firearm offences and in doing so to appear for the NSWDPP. Consequently the NSWDPP did not fail to appear at the committal hearing.”

THE RELEVANT LEGISLATION

7. Section 6(1) of the Act is in the following terms:

Functions of Director

(1) The functions of the Director are:

(a) to institute prosecutions on indictment for indictable offences against the laws of the Commonwealth; and

(b) to carry on prosecutions of the kind referred to in paragraph (a) (not being prosecutions instituted by the Attorney-General or a Special Prosecutor), whether or not instituted by the Director; and

(baa) if the Attorney-General requests the Director in writing to carry on a prosecution of the kind referred to in paragraph (a) that was instituted by the Attorney-General--to carry on that prosecution; and

(ba) where a person holding office as a Special Prosecutor under the Special Prosecutors Act 1982 dies, or ceases for any reason so to hold office and is not forthwith re-appointed--to carry on prosecutions of the kind referred to in paragraph (a), being prosecutions that:

(i) were instituted; or

(ii) were, at the time when the person died or ceased so to hold office, being carried on;

by the person, or by a person acting as a Special Prosecutor under that Act in the place of the first-mentioned person; and

(c) to institute proceedings for the commitment of persons for trial in respect of indictable offences against the laws of the Commonwealth; and

(d) to institute proceedings for the summary conviction of persons in respect of offences against the laws of the Commonwealth; and

(e) to carry on proceedings of a kind referred to in paragraph (c) or (d) (whether or not instituted by the Director); and

(f) to assist a coroner in inquests and inquiries conducted under the laws of the Commonwealth; and

(fa) in respect of relevant matters:

(i) to take civil remedies on behalf of and in the name of the Commonwealth and authorities of the Commonwealth; or

(ii) to co-ordinate or supervise the taking of civil remedies by or on behalf of the Commonwealth and authorities of the Commonwealth;

for, or in connection with, recovery, or ensuring the payment, of amounts of tax; and

(g) in respect of matters in relation to which an instrument under subsection (3) is in force:

(i) to institute proceedings;

(ii) to carry on proceedings (whether or not instituted by the Director); or

(iii) to co-ordinate or supervise the institution or carrying on of proceedings;

for the recovery of pecuniary penalties under the laws of the Commonwealth; and

(h) in respect of relevant matters that are matters in relation to which an instrument under subsection (3) is in force:

(i) to take civil remedies on behalf of and in the name of the Commonwealth and authorities of the Commonwealth; or

(ii) to co-ordinate or supervise the taking of civil remedies by or on behalf of the Commonwealth and authorities of the Commonwealth; and

(j) to consent to prosecutions for offences against the laws of the Commonwealth, being offences of a kind in relation to which an instrument under subsection (4) is in force; and

(ja) to appear in an inquiry by a magistrate held under section 37, or in a proceeding before a magistrate under section 38 or 39, of the Crimes (Aviation) Act 1991 ; and

(k) to appear in proceedings under the Extradition Act 1988 , the International War Crimes Tribunals Act 1995 , the International Criminal Court Act 2002 or the Mutual Assistance in Criminal Matters Act 1987 ; and

(m) where the Director, with the consent of the Attorney-General, holds an appointment to prosecute offences against the laws of a State--to institute and carry on, in accordance with the terms of the appointment, prosecutions for such offences; and

(ma) if the Director is authorised by or under a law of a State to institute and carry on appeals arising out of prosecutions of offences against the laws of the State, being prosecutions by the Director as mentioned in paragraph (m) or by members of the staff of the Office as mentioned in subsection 17(1)--to institute and carry on such appeals in accordance with requirements of or under that law; and

(mb) for the purpose of enforcing orders under Chapter 2 of the Proceeds of Crime Act 2002 :

(i) to institute proceedings; or

(ii) to carry on proceedings (whether or not instituted by the Director); or

(iii) to co-ordinate or supervise the institution or carrying on of proceedings;

(n) to do anything incidental or conducive to the performance of any of the functions referred to in paragraphs (a) to (mb) and in subsection (2).

8. In view of the submissions advanced on behalf of the plaintiff, three other provisions of the Act are relevant. The first and second are ss. 9(5) and (5A) respectively which are in the following terms:

Powers of Director

…

(5) For the purposes of the performance of his or her functions, the Director may take over a proceeding that was instituted or is being carried on by another person, being a proceeding:

(a) for the commitment of a person for trial in respect of an indictable offence against a law of the Commonwealth; or

(b) for the summary conviction of a person in respect of an offence against a law of the Commonwealth;

and where the Director takes over such a proceeding, he or she may decline to carry it on further.

(5A) Where the Director is carrying on a proceeding instituted by another person, being a proceeding of the kind mentioned in paragraph (5)(a) or (b), the Director may decline to carry it on further even if the Director has not taken it over under subsection (5).

…”

9. The third is s. 14 which is in the following terms:

Director to inform court when taking over or carrying on proceedings

(1) Where:

(a) pursuant to subsection 9(3), (3A) or (5), the Director takes over a prosecution or proceeding; or

(b) the Director decides to carry on:

(i) a prosecution for an offence against a law of the Commonwealth; or

(ii) a proceeding for the recovery of a pecuniary penalty under a law of the Commonwealth;

being a prosecution or proceeding that was instituted or is being carried on by another person;

the Director shall, as soon as practicable:

(c) by notice in writing, inform the registrar or other proper officer of the court in which the prosecution or proceeding is to be heard; or

(d) if the prosecution or proceeding is being heard by a judge or magistrate--in such manner as the Director thinks fit, inform the judge or magistrate;

that the Director has taken over, or is carrying on, as the case may be, the prosecution or proceeding, but failure of the Director to do so does not affect any of the Director's powers in relation to the prosecution or proceeding.

(2) The Director shall, as from the time when he or she complies with subsection (1) in relation to a prosecution or proceeding that he or she has taken over pursuant to subsection 9(3), (3A) or (5), be deemed for all purposes to be the prosecutor, informant or complainant, as the case requires, in that prosecution or proceeding.

SUBMISSIONS OF THE PARTIES

Submissions of the plaintiff

10. The fundamental submission of counsel for the plaintiff was that the words “institute and carry on” which appear in s. 6(1)(m) of the Act are to be read conjunctively, as opposed to disjunctively. In other words, it was submitted that properly construed, s. 6(1)(m) meant that that the CDPP could “carry on” only those proceedings which he himself had instituted. Adopting this construction it followed, in counsel’s submission, that because the proceedings against the plaintiff for the State offences were not commenced by the CDPP, the CDPP had no power to carry them on, and thus no power to conduct the committal proceedings in respect of those offences before the Magistrate.

11. It was submitted by counsel for the plaintiff that although the words “institute and carry on” as they appear in s. 6(1)(m) could be read disjunctively if considered in isolation, such a construction should not be adopted in light of the provisions the Act as a whole. It was submitted, by reference to various authorities, that the meaning of a statutory provision was to be determined by reference to the language of the instrument when viewed as a whole and that, when this approach was taken, the disjunctive construction advanced by the CDPP could not be accepted.

12. In developing these submissions, counsel referred to various aspects of the drafting of s. 6 which were said to support the construction which was advanced. It was pointed out, in particular, that in a number of provisions within s. 6 the draftsman had deliberately separated the function of instituting proceedings from the function of carrying on such proceedings. By way of example, counsel pointed out that:

1. in respect of Commonwealth indictable offences, the power to institute proceedings was to be found in s. 6(1)(a), whereas the power to carry on those proceedings was to be found in s. 6(1)(b);

2. in respect of committal proceedings for Commonwealth offences, the power to institute the proceedings was to be found in s. 6(1)(c), whereas the power to carry on those proceedings was to be found in s. 6(1)(e); and

3. in respect of summary proceedings for Commonwealth offences, the power to institute the proceedings was to be found in ss. 6(1)(d), whereas the power to carry on those proceedings was to be found in 6(1)(e).

13. Counsel submitted that in contrast, each of ss. 6(1)(m) and 6(1)(ma) provided for both functions within the same provision. It was submitted that these variations in drafting were explicable only on the basis that the Parliament intended that the power of the CDPP to carry on proceedings for State offences was conditional upon the relevant charges having been brought by the CDPP, and not by someone else.

14. Counsel further submitted that a disjunctive construction would lead to anomalies in light of ss. 9(5) and (5A) of the Act. By reference to those provisions, counsel submitted that the CDPP may carry on proceedings instituted by another person (s. 6(1)(e)), and may subsequently decline to carry on those proceedings (s. 9(5A)). However, it was submitted that if the CDPP’s argument was to be accepted, the CDPP was able to carry on proceedings for State offences instituted by someone else in circumstances where there was no power (be it in s. 9 or elsewhere) to decline to further carry on those proceedings.

15. Counsel further submitted that the construction advanced on behalf of the CDPP would undermine the effectiveness of the notice provisions contained in s. 14(1) of the Act. It was submitted, in particular, that having regard to s. 14(1) the CDPP was required to notify the court when he had decided to carry on the prosecution of a Commonwealth offence, or proceedings for the recovery of a pecuniary penalty, but was not under any similar requirement where he had elected to carry on a prosecution for a State offence. Counsel submitted that the absence of a notice requirement was explained by the fact that no notice was, in fact, required in respect of proceedings for State offences because such matters could be prosecuted by the CDPP only if he had instituted those proceedings. It was submitted that what was an “obvious absurdity” could only be avoided if a conjunctive construction was applied to the words “institute and carry on”.

16. In advancing these submissions counsel accepted that the decision of the Qld Court of Appeal in R v Dexter [2002] QCA 540 was at odds with his position. However, he submitted that a proper reading of the decision in Dexter made it clear that the provisions of s. 6(1)(m) were not fully considered in that case and that in these circumstances, it was open to me to decline to follow it.

Submissions of the first defendant

17. Senior counsel for the CDPP accepted that prerogative relief was available in relation to committal proceedings. However he emphasised the significance of the discretionary considerations which arise in such circumstances: Nanevski v Haskett [2006] NSWSC 1114 at [28] per McClellan CJ at CL; Tez v Longley [2004] NSWSC 74; (2004) 142 A Crim R 122 at [13]; [18]-[27] per Shaw J.

18. As to the principal submissions advanced on behalf of the plaintiff, senior counsel for the CDPP argued that an interpretation of s. 6(1)(m) of the Act which meant that the plaintiff’s plea of guilty to the Commonwealth offence in the course of the committal proceedings ipso facto ended the role of the CDPP as prosecutor of the State offences, would be manifestly absurd.

19. Senior counsel submitted that the relevant Commonwealth legislation mandates that a construction of a statute which promotes the purpose or object of an Act is to be preferred to a construction which does not. In this regard, senior counsel cited s. 15AA of the Acts Interpretation Act 1901 (Cth) (“the Interpretation Act”) which is in the following terms:

15AA Interpretation best achieving Act's purpose or object

In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

20. In reliance upon that provision, senior counsel submitted that the underlying purpose of the Act was to empower the CDPP to prosecute offences, and that a disjunctive construction of s. 6(1)(m) was consistent with, and promoted, that purpose.

21. It was further submitted that a disjunctive construction produced a fairer and more convenient operation of the provision, and conformed with the relevant legislative intention. It was submitted that if the Parliament had intended the words in s. 6(1)(m) to be construed conjunctively, other language would have been used so as to make that intention clear, such as “to institute and then carry on” or “to carry on, in accordance with the terms of the appointment, prosecutions for State offences instituted by the Director”. It was submitted that the absence of such language supported the CDPP’s position.

22. Senior counsel further submitted that there was a nexus between the State offences charged against the plaintiff and the Commonwealth offence. It was submitted that such a nexus remained, notwithstanding the plea of guilty to the Commonwealth offence and the plaintiff’s committal for sentence on that charge, and that it supported the power of the CDPP to prosecute the State offences.

23. Finally, senior counsel submitted that the decision in Dexter directly supported the CDPP’s position. It was submitted, in particular, that the reasons of McMurdo P were part of the ratio decidendi, and that they supported the conclusion that s. 6(1)(m) of the Act was to be read disjunctively. It was submitted that I should follow the decision in Dexter unless I could come to a conclusion that it was plainly wrong. It was submitted that such a conclusion was not reasonably open in the circumstances.

CONSIDERATION

24. In “Statutory Interpretation in Australia” (D C Pearce and R S Geddes) the authors, in reference to s. 15AA of the Interpretation Act, state the following (at [2.11]):

“The task of the Court under s. 15AA and its equivalents is to seek to discover the underlying purpose or object of the Act or other legislation in which a provision is contained and, if possible, to adopt an interpretation of the provision that furthers the purpose or object”.

25. The long title to the Act states that it is an Act “to establish an Office of the Director of Public Prosecutions and for related purposes”. In the present case, counsel for the plaintiff accepted that part of the underlying purpose of the Act was to provide the Director with “statutory powers”. The statutory powers to which counsel was referring must necessarily be statutory powers related to the prosecution of offences. Similarly, the reference to “related purposes” in the long title to the Act must be a reference to purposes related to the prosecution of offences.

26. The position taken by counsel for the plaintiff as to the purpose of the Act is generally consistent with the terms of the Explanatory Memorandum to the Director of Public Prosecutions Bill (1983) which stated (inter alia):

“Clause 6 – this clause states that the functions of the Director are as follows:

“… to conduct prosecutions for State offences where, with the consent of the Attorney-General, the Director holds an appointment to do so”.

27. It is apparent from the terms of Clause 6 that it was the intention of the Parliament that the Director conduct prosecutions for State offences where (as here) he holds the necessary appointment to do so. The stated intention says nothing about the institution of such prosecutions. Moreover, there is no relevant difference between the word “conduct” (being the term used in the Explanatory Memorandum) and the term “carry on” (being the term used in s. 6(1)(m) of the Act). In R v Dainer and ors; Ex parte Pullen (1988) 78 ACTR 25 Kelly J, in reference to the decision of the English Court of Appeal in Raymond v Attorney-General [1982] QB 839, concluded (at 31) that the term “carry on”, where it was used in the Act in relation to proceedings or prosecutions, was intended to relate to the general conduct of such proceedings (see also Dexter at [29] per McMurdo P where her Honour cited the dictionary definition of such terms). All of these considerations tend against the conjunctive construction of s. 6(1)(m) which has been advanced by the plaintiff.

28. Further, as counsel for the CDPP pointed out, the acceptance of a conjunctive construction of s. 6(1)(m) would mean, in the context of the present case, that once the plea of guilty to the Commonwealth offence had been entered by the plaintiff, there would suddenly have been no prosecutor for the State offences, in circumstances where the two were factually related. I accept the submission of senior counsel for the CDPP that this would be an absurd result and one that the Parliament could not possibly have intended. It would also be a result which was at odds with what counsel for the plaintiff agreed was part of the underlying purpose of the Act (at [25] above).

29. Moreover, as counsel for the plaintiff conceded, the construction of s. 6(1)(m) which he advanced is at odds with the decision in Dexter (supra). In Dexter the appellant had been convicted in the Queensland District Court in respect of a series of offences contrary to the Criminal Code 1899 (Qld) (“the Code”). At the time, the CDPP and the Queensland Director of Public Prosecutions (“QDPP”) had in place an agreement to allow either organisation to prosecute Commonwealth and State offences on a single indictment. The agreement required a case by case decision, as well as mutual consent. It included general guidelines for deciding which organisation should have conduct of proceedings. The CDPP had asked the QDPP to consent to the presentation of an ex-officio indictment against the appellant containing 17 counts contrary to the Code. In seeking that consent, a draft indictment was provided. The QDPP subsequently gave permission to the CDPP to present that indictment. This permission amounted, in effect, to the QDPP giving its consent:

1. to prosecuting counsel, to sign and present the indictment; and

2. to the CDPP, to prepare and fund the prosecution, and to instruct prosecuting counsel.

30. Following his conviction, the appellant appealed. He argued that the CDPP’s involvement in the institution and presentation of the indictment, which charged offences only against a law of Queensland, rendered the indictment a nullity, and that the convictions based upon it were required to be set aside. It was argued that the CDPP had no lawful authority to indict and prosecute the appellant, be it in right of the Commonwealth or in right of the State.

31. The appeal was dismissed. In the course of her judgment McMurdo P said the following (commencing at [29]):

[29] As the CDPP had the consent of the Commonwealth Attorney-General to hold an appointment to prosecute offences against the laws of Queensland under s6(1)(m) CDPP Act (and held a commission to prosecute under s560(2) Criminal Code (Qld)) the CDPP's functions included "to institute and carry on ... prosecutions" for Queensland. The term "carry on" is not defined in the CDPP Act. The meaning of the phrase in the Macquarie Dictionary18 is "to manage; conduct;...". Although the CDPP did not institute this prosecution on indictment he did, with the consent of the QDPP, carry on the prosecution in preparing the case and briefing and instructing (prosecuting counsel). S6(1)(m) CDPP Act does not limit the function of the CDPP to the conduct of Queensland prosecutions which he has also personally instituted (that is, where he has signed and presented the indictment); it also includes the carrying on of prosecutions, which incorporates the preparation and management of a prosecution case.

[30] The CDPP's commission under s560 Criminal Code (Qld) was personal to him and s6(1)(m) CDPP Act only authorised the institution and carrying on of Queensland prosecutions in accordance with the terms of that commission. His commission authorised the CDPP in the absence of the Attorney-General for the State of Queensland to "sign in [his] own name and present indictments in respect of indictable offences and to prosecute the same for Her Majesty The Queen at any Sittings of the Supreme, Circuit and District Courts appointed to be held at any place within the State of Queensland." It has never been the case that such a commission limits the holder to the prosecution of indictments signed and presented by the holder; it also allows the holder to prosecute all properly signed and presented valid indictments. The words "the same" refer to "indictments in respect of indictable offences"; they are not limited to indictments in respect of indictable offences signed and presented by the holder. The terms of the CDPP's commission to prosecute under s560(2) Criminal Code (Qld) allowed him to carry on the prosecution of the indictment signed and presented by Mr MacSporran, who also held a commission to prosecute under s560 Criminal Code (Qld). The words "carry on ... prosecutions" in s6(1)(m) CDPP Act and "prosecute" in the commission are not limited to the adversarial conduct of the case in court but include giving advice and preparation” (emphasis added).

32. Jerrard JA (at [89]) relevantly agreed with McMurdo P. In the present case, there is no issue that the CDPP holds a relevant instrument of appointment. Both parties accepted that the passages of the judgment of McMurdo P to which I have referred formed part of the ratio decidendi.

32. As a judge at first instance I should not depart from a decision of an intermediate appellate Court in another jurisdiction in respect of the interpretation of Commonwealth legislation or uniform national legislation, unless I am convinced that the interpretation is plainly wrong: Farah Constructions Pty Limited and ors v Say-Dee Pty Limited [2007] HCA 22; (2007) 230 CLR 89 at [135]; 152 (per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) citing Australian Securities Commission v Marlborough Gold Mines Limited [1993] HCA 15; (1993) 177 CLR 485 at 492 (per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ). I am not convinced that the interpretation ascribed to s. 6(1)(m) in Dexter is plainly wrong. On the contrary, I respectfully agree with the reasons of McMurdo P. Her Honour’s interpretation of s. 6(1)(m) is consistent with the view I have otherwise reached.

33. I am unable to accept the submission of counsel for the plaintiff that it is open to me to decline to follow the decision in Dexter because the provisions of s. 6(1)(m) were not fully considered by the Court of Appeal. Such a submission is at odds with the terms of the judgment of McMurdo P. Further, it is of some significance that the decision of the Court of Appeal was the subject of an application for special leave to appeal to the High Court: Dexter v R [2004] HCA Trans 219. The provisions of s. 6(1)(m) were specifically referred to by senior counsel for the appellant at the hearing of the application for special leave (commencing at T6 L217). Without calling upon the then Commonwealth Director, Gleeson CJ concluded (at T7 L262) that there were insufficient prospects of success of an appeal to warrant a grant of special leave. The application for special leave was then dismissed. In my view, the provisions of s. 6(1)(m) were obviously the subject of judicial consideration in Dexter, and the conclusion which was reached was at odds with the submissions now advanced on behalf of the plaintiff.

ORDERS

35. I make the following orders:

1. The order granting a stay of the proceedings against the plaintiff in the Local Court is vacated.

2. The proceedings in this court are dismissed.

3. The plaintiff is to provide written submissions, not exceeding two pages in length, as to the question of costs by 4:00pm on 27 August 2015.

4. The first defendant is to respond by providing submissions, not exceeding two pages in length by 4:00pm 2 September on 2015.

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Decision last updated: 20 August 2015