Hanna v Director of Public Prosecutions

[2005] NSWSC 134

Reported Decision: 62 NSWLR 373

New South Wales

Supreme Court

CITATION:	Hanna v Director of Public Prosecutions of NSW [2005] NSWSC 134 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	24/02/05
JUDGMENT DATE :	24 February 2005
JUDGMENT OF:	James J at 1
DECISION:	Plaintiff's notice of motion and summons are dismissed

CATCHWORDS:	Administrative law - prosecutorial powers - whether a decision by the Director of Public Prosecutions to take over prosecutions and decline to proceed further is susceptible to judicial review
LEGISLATION CITED:	Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Director of Public Prosecutions Act 1986 (NSW) Justices Act 1902 (NSW)(repealed) Migration Act 1958 (Cth) Public Prosecutions Act 1994 (Vic) Supreme Court Rules 1970 (NSW)
CASES CITED:	Barton v The Queen (1980) 147 CLR 75 Council of Civil Service Unions v Minister for Civil Service [1985] 1 AC 374 Gerlach v Clifton Bricks Pty Limited (2002) 76 ALJR 828 Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 Hot Holdings Pty Limited v Creasy (1996) 185 CLR 149 M v Director of Public Prosecutions NSWSC; unreported 6 March 1996 Maxwell v The Queen (1995) 184 CLR 501 Padfied v Minister of Agriculture, Fisheries & Food [1968] AC 997 Richardson v The Queen (1974) 131 CLR 116 Stefanovski v The Magistrates' Court of Victoria & Ors [2004] VSC 313 The King v Weaver (1931) 45 CLR 321 The Queen v Apostilides (1984) 154 CLR 563
PARTIES:	Fayez Phillippe HANNA v DIRECTOR OF PUBLIC PROSECUTIONS OF NSW
FILE NUMBER(S):	SC 012551/04
COUNSEL:	In Person - Plaintiff I Temby QC - Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

THURSDAY 24 FEBRUARY 2005

012551/04 - Fayez Phillippe HANNA v DIRECTOR OF PUBLIC PROSECUTIONS NSW

JUDGMENT


1 HIS HONOUR : This is an application brought by the defendant the Director of Public Prosecutions (NSW) against the plaintiff Fayez Phillippe Hanna for an order that the summons by which the principal proceedings were commenced should be summarily dismissed pursuant to Pt 13 r 5 of the Supreme Court Rules. On the hearing of the application the Director was represented by senior counsel. Mr Hanna was not legally represented and appeared in person.

2 In the principal proceedings Mr Hanna by his amended summons seeks a declaration that the decision of the Director of Public Prosecutions to take over sixty-three criminal prosecutions commenced by Mr Hanna against five individuals Geoffrey Campbell Kearns, Fikry Wadid Maks, his wife Mona Adly Maks, Tatiana Onano and Adrian Salem was ultra vires. The plaintiff’s summons is supported by an affidavit of Mr Hanna sworn 10 August 2004. It is apparent from Mr Hanna’s affidavit that the relief sought by him is more extensive than the relief stated in the summons and extends to seeking a declaration that the decision of the Director to take over the sixty-three prosecutions and the decision of the Director to decline to proceed further with the prosecutions are void on a number of administrative law grounds.

3 The Director of Public Prosecutions’ application to have the plaintiff’s summons dismissed is supported by an affidavit sworn by Helen Christine Langley, a solicitor employed in the office of the Director of Public Prosecutions.

4 It is convenient to outline some of the rather complicated background facts. I have taken the outline I am about to give from parts of the affidavits of Mr Hanna and Ms Langley which were not in dispute on the hearing of this application. I have had regard to all of the matters deposed to in the two affidavits, whether or not I refer to them in the following outline.

5 Between June 1994 and June 1999 Mr Hanna was a registered migration agent under the Migration Act 1958 (Cth). However, in June 1999 his registration as a migration agent lapsed. On 9 October 2001 two informations against Mr Hanna were laid by Mr Kearns, who was an investigator in the Department of Immigration and Multicultural Affairs, alleging that Mr Hanna had committed an offence under s 283(1) of the Migration Act in that not being a registered agent he had represented that he was a registered agent and an offence under s 284(1) of the Act in that not being a registered agent he had advertised that he gave immigration assistance. The Commonwealth Director of Public Prosecutions had the conduct of these prosecutions for offences under a Commonwealth Act.

6 The hearing of the two informations against Mr Hanna commenced at Bankstown Local Court on 20 May 2002 and continued on 21 May 2002. At the hearing on those days Mr Hanna was legally represented.

7 On 20 May evidence was given by Mr Maks, who was the proprietor of a newspaper, in which, according to the prosecution case, advertisements by Mr Hanna that he gave immigration assistance had appeared after his registration as a migration agent had lapsed; by Mrs Maks; and by Tatiana Onano, who was then a migration agent but who had formerly been employed by Mr Hanna as a migration consultant.

8 On 21 May 2002 Mr Hanna himself gave evidence in his own case. The proceedings were adjourned while Mr Hanna was still being cross-examined.

9 On 20 August 2002 the Commonwealth Director of Public Prosecutions wrote a letter to Mr Hanna’s solicitors, enclosing a statement by Adrian Salem and giving notice that the informant intended to call Mr Salem as a rebuttal witness in a case in reply.

10 On 2 September 2002 the hearing of the two informations against Mr Hanna was continued. Mr Hanna was no longer legally represented. There was no further cross-examination of Mr Hanna but further evidence was given by Mr Hanna as being evidence in re-examination. The informant was permitted to present, and presented, a case in reply. In the case in reply Mr Salem gave evidence.

11 On 2 September 2002 the magistrate gave judgment. In his judgment the magistrate found that the offence charged under s 284(1) of the Migration Act, that not being a registered agent Mr Hanna had advertised that he gave immigration assistance, had been proved and Mr Hanna was convicted of this offence. However, the magistrate found that the offence charged under s 283(1) of the Migration Act, that Mr Hanna not being a registered agent had represented that he was a registered agent, had not been proved and that information was dismissed. For the offence under s 284(1) of the Act Mr Hanna was fined $2,500 and ordered to pay court costs.

12 Mr Hanna took various steps to challenge his conviction for the offence under s 284(1) of the Act. One step he took was to appeal to the District Court. His appeal to the District Court was heard on 5 and 6 June 2003. On 11 June 2003 his appeal was dismissed.

13 In July 2003 Mr Hanna lodged a notice of intention to appeal to the Court of Criminal Appeal but on 10 July 2003 the Registrar of the Court of Criminal Appeal wrote a letter to Mr Hanna, informing him that the Court of Criminal Appeal had no jurisdiction to entertain the proposed appeal and Mr Hanna did not proceed further with any appeal to the Court of Criminal Appeal.

14 On 19 December 2003 Mr Hanna filed an appeal to the Court of Appeal. This appeal was heard by the Court of Appeal on 13 May 2004, when the Court of Appeal reserved its judgment.

15 When Mr Hanna commenced these proceedings and swore his affidavit on 10 August 2004 the Court of Appeal had not yet given judgment on Mr Hanna’s appeal. Coincidentally, on the following day 11 August 2004 the Court of Appeal delivered its reserved judgment. Mr Hanna’s appeal was dismissed on the ground that he had failed to show any jurisdictional error or any error of law on the face of the record.

16 On 24 February 2003 Mr Hanna laid the sixty-three informations with which the present proceedings are concerned.. Twenty-nine of those informations were laid against Mr Kearns. The charges comprised four charges of subornation of perjury pursuant to s 333 of the Crimes Act, one charge of perjury pursuant to s 327 of the Crimes Act, one charge of perjury with intent to procure conviction pursuant to s 328 of the Crimes Act, four charges of perverting the course of justice pursuant to s 319 of the Crimes Act, four charges of tampering with evidence pursuant to s 317 of the Crimes Act and 15 charges of misleading documents or statements used or made by an agent pursuant to s 249C of the Crimes Act.

17 Ten informations were laid against Tatiana Onano. The charges comprised one charge of fraudulent misappropriation of moneys pursuant to s 178A of the Crimes Act, one charge of obtaining money by deception pursuant to s 178BA of the Crimes Act, one charge of perjury pursuant to s 327 of the Crimes Act, five charges of perjury with intent to procure conviction pursuant to s 328 of the Crimes Act one charge of subornation of perjury pursuant to s 333 of the Crimes Act and one charge of perverting the course of justice pursuant to s 319 of the Crimes Act.

18 Seven informations were laid against Mr Salem. The charges comprised one charge of larceny by a clerk or servant pursuant to s 156 of the Crimes Act, one charge of obtaining money by deception pursuant to s 178BA of the Crimes Act, one charge of obtaining money by a false or misleading statement pursuant to s 178BB of the Crimes Act, one charge of tampering with evidence pursuant to s 317 of the Crimes Act, one count of perverting the course of justice pursuant to s 319 of the Crimes Act and two charges of perjury with intent to procure conviction pursuant to s 328 of the Crimes Act.

19 Eleven informations were laid against Mr Maks. The charges comprised one charge of blackmail by threat to publish pursuant to s 100A of the Crimes Act, two charges of accusing or threatening to accuse of crime to extort money pursuant to s 102 of the Crimes Act, two charges of making or using false instruments pursuant to s 300 of the Crimes Act, one charge of perverting the course of justice pursuant to s 319 of the Crimes Act, three charges of perjury with intent to procure conviction pursuant to s 328 of the Crimes Act and two counts of subornation of perjury pursuant to s 333 of the Crimes Act.

20 Six informations were laid against Mrs Maks. These charges comprised one charge of perverting the course of justice pursuant to s 319 of the Crimes Act, two charges of making or using false instruments pursuant to s 300 of the Crimes Act and three counts of perjury with intent to procure conviction pursuant to s 328 of the Crimes Act.

21 Before the informations were laid Mr Hanna had sought leave to bring the prosecutions for perjury and the magistrate who had heard the two charges brought against Mr Hanna granted the application for leave to bring the prosecutions for perjury.

22 On 19 May 2003 Ms O’Shane a Local Court magistrate dismissed all sixty-three informations for want of prosecution, when there was no appearance by or for the informant when the matters were called. Later in the day Mr Hanna appeared in the court room and there was an exchange between Mr Hanna and the magistrate. The magistrate declined to revoke or vary the orders she had earlier made dismissing the informations.

23 On 29 May 2003 Ms O’Shane dismissed an application by Mr Hanna pursuant to s 100D of the Justices Act (since repealed) to annul the decision she had made on 19 May 2003 to dismiss all the informations.

24 On 26 June 2003 Mr Hanna applied to the Supreme Court for judicial review of the decisions of Ms O’Shane of 19 May 2003 and 29 May 2003. This application was heard by Shaw J on 21 October 2003 and on 14 November 2003 his Honour delivered a reserved judgment in which he quashed the magistrate’s decisions of 19 May 2003 and 29 May 2003 on the ground that Mr Hanna had been denied procedural fairness and remitted all of the matters to the Local Court.

25 All of the informations were fixed for hearing in the Local Court on 3 August 2004. On 23 June 2004 the Australian Government Solicitor, acting for Mr Kearns, wrote a letter to the New South Wales Director of Public Prosecutions requesting the Director of Public Prosecutions to take over the prosecutions of Mr Kearns. On 9 July 2004 a private firm of solicitors acting for Mr Maks, Ms Onano and Mr Salem wrote a letter to the Director of Public Prosecutions requesting the Director of Public Prosecutions to take over the prosecutions of those defendants. On 26 July 2004 the same firm of solicitors wrote a further letter in which it was stated that they also acted for Mrs Maks and in which they requested the Director of Public Prosecutions to take over the prosecutions of all of their four clients.

26 These letters having been received by the Director of Public Prosecutions, Ms Langley applied herself to reading the briefs of evidence which had been served by Mr Hanna on the defendants.

27 On 29 July 2004 a letter was sent by the Office of the Director of Public Prosecutions to the Registrar of the Local Court. The letter was signed by Ms Langley on behalf of the Solicitor for Public Prosecutions. In the letter it was stated:
“The brief served in the prosecutions is presently being considered but given the number of charges and the size of that brief it is unlikely that the Director’s decision about taking over the 63 matters will be available by 3 August 2004 when the matters are next listed before the court. Accordingly I ask that the matters be stood over for a period of three weeks to enable the referrals to be properly considered by this office.”
28 On the following day 30 July 2004 a letter from the Director of Public Prosecutions’ Chambers, signed by the Director himself, was sent to the Registrar of the Local Court. In that letter the Director referred to the sixty-three informations against Mr Kearns, Mr Maks, Mrs Maks, Ms Onano and Mr Salem and the Director continued:
“The matters having been referred to me by the solicitors acting for the defendants and the solicitors having requested on behalf of their clients that I take over the private prosecutions, I advise that pursuant to s 9(1) of the Director of Public Prosecutions Act 1986 today I took over each of the 63 prosecutions.
I further advise that pursuant to s 9(4)(b) of the Director of Public Prosecutions Act 1986 I have declined to proceed further with those prosecutions.”

29 A copy of the Director’s letter of 30 July 2004 was sent to Ms Langley and Ms Langley in turn sent a copy of the letter to Mr Hanna.

30 On 3 August 2004 the sixty-three informations came before a Local Court magistrate for directions. Mr Hanna appeared in person. A solicitor from the Office of the Australian Government Solicitor appeared for Mr Kearns. A private solicitor appeared for the other defendants. Ms Langley, appearing for the Director of Public Prosecutions, informed the court that the Director of Public Prosecutions had taken over all the prosecutions and had declined to proceed further, because there was not sufficient evidence to establish a prima facie case.

31 On 10 August 2004 the proceedings in this court were commenced by a summons filed by Mr Hanna, which was supported by Mr Hanna’s affidavit.

32 A key assertion in the affidavit is contained in para 68, in which Mr Hanna said:
“As the taking over by the DPP of New South Wales is an administrative decision, therefore administrative law, legislation and common law apply.”

33 In other parts of the affidavit Mr Hanna said inter alia that the acts of the Director of Public Prosecutions in taking over the prosecutions and declining to proceed further with the prosecutions were ultra vires, that the Director’s decisions had not been made for a proper purpose, that the Director’s decisions had not been made in good faith, that the Director’s decisions were not in the public interest, that there was a reasonable apprehension of bias on the Director’s part, that Mr Hanna should have been given an opportunity of being heard before the Director’s decisions were made, that the only reason for the Director’s decisions was to cover up the commission of offences by Mr Kearns and the other defendants in what was said to be the unfounded prosecution of Mr Hanna, that the Director had not exercised his own discretion in making the decisions but had acted at the request of the solicitors for the defendants. As I noted earlier in this judgment, it is apparent from Mr Hanna’s written submissions that Mr Hanna seeks an administrative review of the Director’s decisions on a wide range of grounds.

34 In her affidavit Ms Langley set out some of the background which I have outlined earlier in this judgment.

35 Although it was objected to by Mr Hanna and not ultimately pressed by counsel for the Director of Public Prosecutions as being admissible in evidence, an important contention in Ms Langley’s affidavit is the contention in para 15 that the Director’s decision to take over the private prosecutions and to decline to proceed further is unreviewable by the courts. It is submitted by Ms Langley in par 15 of her affidavit that the powers exercised by the Director are akin to the common law nolle prosequi power or the common law power to find a bill of indictment and the fact that the powers are conferred by statute on the Director of Public Prosecutions does not alter the nature of the powers being exercised.

36 I will now set out some of the provisions of the Director of Public Prosecutions Act 1986.

“4 Director
(1) The Governor may appoint a Director of Public Prosecutions.
(2) The Director shall have and may exercise the functions conferred or imposed on the Director by or under this or any other Act.
The Director is responsible to the Attorney General for the due exercise of the Director’s functions, but nothing in this subsection affects or derogates from the authority of the Director in respect of the preparation, institution and conduct of any proceedings.

7 Principal functions
(1) The principal functions and responsibilities of the Director are:
(a) to institute and conduct, on behalf of the Crown, prosecutions (whether on indictment or summarily) for indictable offences in the Supreme Court and the District Court,
(b) to institute and conduct, on behalf of the Crown, appeals in any court in respect of any such prosecution, and
(c) to conduct, on behalf of the Crown as respondent, any appeal in any court in respect of any such prosecution.
(2) The Director has the same functions as the Attorney General in relation to:
(a) finding a bill of indictment, or determining that no bill of indictment be found, in respect of an indictable offence, in circumstances where the person concerned has been committed for trial,
(b) directing that no further proceedings be taken against a person who has been committed for trial or sentence, and
(c) finding a bill of indictment in respect of an indictable offence, in circumstances where the person concerned has not been committed for trial.

9 Taking over prosecutions or proceedings
(1) If a prosecution or proceeding in respect of an offence (whether it is an indictable offence or a summary offence) has been instituted by a person other than the Director, the Director may take over the matter and:
(a) carry on the prosecution or proceeding,
(b) carry on, on behalf of the prosecution or as respondent, an appeal in any court in respect of the offence,
(c) institute and conduct, on behalf of the prosecution, an appeal in any court in respect of the offence, and
(d) conduct, as respondent, an appeal in any court in respect of the offence.
(2) The Director may not take over a matter under this section involving a summary offence, unless:
(a) the offence is a prescribed summary offence, or
(b) a person otherwise responsible for the matter has consented in writing.

(3) Except as provided by subsection (2), the Director may take over a matter under this section whether or not the person otherwise responsible for the matter consents.
(4) If the Director takes over a matter under this section:
(a) the Director shall, as from the time when the Director complies with section 10 (1) in relation to the matter, be deemed to be the prosecutor in connection with the prosecution or proceeding concerned, and
(b) the Director may decline to proceed further in the prosecution or to carry the proceeding further.

10 Director to inform court etc when taking over proceedings
(1) If the Director decides to take over a matter in accordance with section 9, the Director shall, as soon as practicable:
(a) by notice in writing, inform the person otherwise responsible for the matter, and
(b) if the matter is pending before a court:
(i) by notice in writing, inform the registrar or other proper officer of the court in which the prosecution or proceeding concerned is to be heard, or
(ii) 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 the matter.
(2) Failure by the Director to notify or inform does not affect any of the Director’s functions in relation to the matter”.


37 With respect to s 9(2) of the Act, all of the sixty-three offences charged by Mr Hanna are indictable and not summary offences. In making the decisions that he did, the Director of Public Prosecutions was exercising the power conferred by s 9(1) of the Act to take over a criminal prosecution which has been instituted by a person other than the Director and the power conferred by s 9(4) of the Act that, if the Director takes over a matter under s 9, the Director may decline to proceed further in the prosecution.

38 At the hearing of this application the Court received written and oral submissions from both the Director of Public Prosecutions and Mr Hanna. It was submitted on behalf of the Director, and is clearly correct, that s 9 of the Director of Public Prosecutions Act confers power on the Director to take over a prosecution which has been instituted by the person other than the Director and, having taken over the prosecution, to decline to proceed further in the prosecution.

39 A fundamental submission made on behalf of the Director of Public Prosecutions was that the decisions made by the Director to take over the prosecutions instituted by Mr Hanna and to decline to proceed further in the prosecutions were decisions made by the Director of Public Prosecutions as a prosecuting authority and that such decisions made by a prosecuting authority are not susceptible of judicial review by the courts. It was conceded that a decision might be reviewable if it was established that it had been made for a private purpose of the Director, for example, if a decision made by the Director had been induced by bribery of the Director.

40 In support of his submission counsel for the Director of Public Prosecutions referred to a number of authorities including The King v Weaver (1931) 45 CLR 321 at 334, Barton v The Queen (1980) 147 CLR 75 and Maxwell v The Queen (1995) 184 CLR 501. Counsel for the Director of Public Prosecutions also referred to two single judge decisions, a decision by Dunford J of this Court in M v Director of Public Prosecutions (unreported 6 March 1996) and Stefanovski v The Magistrates’ Court of Victoria & Ors [2004] VSC 313, a decision of Habersberger J of the Supreme Court of Victoria.

41 A subsidiary submission was made that the Director of Public Prosecutions’ decision was not reviewable, on the ground that the Director’s decision did not affect Mr Hanna in either of the ways described by Lord Diplock in Council of Civil Service Unions v Minister for Civil Service [1985] 1 AC 374 at 408.

42 It was submitted on behalf of the Director of Public Prosecutions that the present case was an appropriate case for the Court to exercise its powers under Pt 13 r 5 of the Supreme Court Rules, which confers a power to summarily dismiss any proceedings in which no reasonable course of action is disclosed.

43 In his written and oral submissions Mr Hanna reiterated and expanded upon the submissions made in his affidavit of 10 August 2004. He made a number of submissions in support of grounds on which, if the Director’s decisions were susceptible of judicial review, it might be arguable that the Director’s decisions were liable to be impeached. These grounds included that the Director had acted in excess of his powers, that the Director had not exercised his own discretion and had been improperly influenced by the letters from the defendants’ solicitors, that the Director had been under an obligation to make inquiries before making a decision and had not done so, that the decisions of the Director could be seen to be irrational when the Director’s acts and the Director’s letter of 30 July 2004 was compared with Ms Langley’s letter of 29 July, that the Director had acted for an improper purpose, that there was a reasonable apprehension of bias on the Director’s part, that in breach of procedural fairness Mr Hanna had not been given an opportunity of being heard before the Director made his decisions, that the Director’s decisions had been made by him for the purpose of concealing offences committed in the prosecution of Mr Hanna and that the Director was improperly seeking to establish a monopoly over the bringing of criminal prosecutions in this State.

44 Mr Hanna referred to a number of authorities. Among the authorities he referred to was Hot Holdings Pty Limited v Creasy (1995-1996) 185 CLR 149 at 171 per Brennan CJ, Gaudron and Gummow JJ, where their Honours said:
“The courts do not readily classify as absolute or unfettered a statutory discretion, the exercise of which will affect the rights of a citizen and if the legislature intends that result, ‘it should do so by a very plain expression of its intent.’”

It was submitted that there was no such plain expression of intent to be found in the Director of Public Prosecutions Act.

45 Mr Hanna also referred to Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478, especially at 503-504 (69, 70). At paras 69 and 70 Kirby and Callinan JJ in a joint judgment said inter alia:
“Where a discretion is conferred by statute it must be exercised in accordance with the language by which it is conferred and to achieve the purposes for which the power has been granted. To talk of ‘absolute’ judicial discretions, at least where such discretions are conferred by an Australian statute, involves a contradiction in terms. Absolute discretions are a form of tyranny.
…
All repositories of public power in Australia, certainly those exercising such powers under laws made by an Australian legislature, are confined in the performance of their functions to achieving the objects for which they have been afforded such power. No Parliament of Australia could confer absolute power on anyone.”

46 I will now refer in more detail to two of the High Court decisions cited by counsel for the Director.

47 In Barton v The Queen the High Court held that a decision of the Attorney-General under s 5 of the Australian Courts Act 1828 to present an ex officio information or indictment was not examinable by the courts. In Barton Gibbs ACJ and Mason J said at pp 94 and 95:

“All this indicates that Parliament intended to give the Attorney-General for the Colony the unexaminable discretion possessed by the Attorney-General in England acting on behalf of the Crown. The function which the Attorney performs in commencing prosecutions is one that otherwise was performed by the grand jury whose decisions were not subject to judicial review except for matters going to essential regularity.

It would be surprising if Parliament intended to make the Attorney's information subject to review. It has generally been considered to be undesirable that the court, whose ultimate function it is to determine the accused's guilt or innocence, should become too closely involved in the question whether a prosecution should be commenced - see the speeches in Connelly v DPP [1964] AC 1254 [1964] 2 All ER 401, and DPP v Humphrys [1977] AC 1, to which we shall refer shortly - though it may be that in exercising its power to prevent an abuse of process the court will on rare occasions be required to consider whether a prosecution should be permitted to continue. Finally, it cannot be said that the existence of judicial review of the Attorney's decision is essential to the administration of justice for, as we shall see, the court has other powers to ensure that a person charged with a crime is fairly dealt with”.


48 In Maxwell v The Queen it was held by the High Court that a prosecutor who has elected to accept a plea of guilty to a lesser offence than the one charged may, with the leave of the court and before conviction, withdraw acceptance of that plea. It was further held by the High Court that a trial judge has no power to review the making of an election by a prosecutor to accept a plea of guilty to a lesser offence and no power to intervene and reject the plea. At p 512 Dawson and McHugh JJ said:
“Our courts do not purport to exercise control over the institution or continuance of criminal proceedings, save where it is necessary to do so to prevent an abuse of process or to ensure a fair trial.”
49 At p 534 Gaudron and Gummow JJ said:
“The power of the Attorney-General and of the Director of Public Prosecutions to enter a nolle prosequi and that of a prosecutor to decline to offer evidence are aspects of what is commonly referred as ‘the prosecutorial discretion’. In earlier times, the discretion was seen as part of the prerogative of the Crown and, thus, as unreviewable by the courts. That approach may not pay sufficient regard to the statutory office of Director of Public Prosecutions which now exists in all the States and Territories and in the Commonwealth. Similarly, it may pay insufficient regard to the fact that some discretions are conferred by statute….
It ought now be accepted in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process – particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.”

50 The passages in the judgments in Barton and Maxwell which I have quoted strongly support what I have described as a fundamental submission made on behalf of the Director.

51 The two single judge decisions cited by counsel for the Director of Public Prosecutions also support the Director’s fundamental submission.

52 In M v Director of Public Prosecutions the Director of Public Prosecutions, having been asked to consent to an election under s 31(1)(a) of the Criminal Procedure Act 1986 (since repealed) for trial by a judge alone, refused to give his consent. The accused sought judicial review of the Director’s refusal of consent on the ground that the decision to refuse consent could not reasonably have been made. Dunford J dismissed the accused’s proceedings for judicial review. In his judgment his Honour said, “Generally decisions of the prosecuting authorities on the conduct of prosecutions are not reviewable by the courts.” His Honour referred inter alia to The King v Weaver , and Barton v The Queen . His Honour concluded that the decision of the Director of Public Prosecutions not to consent was not reviewable by the courts.

53 Stefanovski v The Magistrates’ Court of Victoria was a case having some resemblance to the present case. Stefanovski had issued two informations, charging that police officers had committed criminal offences. The Victorian Director of Public Prosecutions, acting pursuant to legislation similar to the New South Wales Director of Public Prosecutions Act, took over the conduct of the informations and decided to discontinue the proceedings. A magistrate then struck out both informations and made an order that Stefanovski pay the costs of the defendants. Stefanovski sought judicial review of the magistrate’s orders. The relief sought by him included judicial review of the discontinuance of the two prosecutions by the Director of Public Prosecutions.

54 Habersberger J of the Victorian Supreme Court rejected an argument advanced by Stefanovski that the relevant provisions of the Victorian Public Prosecutions Act 1994 infringed the Commonwealth Constitution. His Honour added:
“Moreover, in my opinion it is not open to the plaintiff to seek judicial review of the decision by the Director to take over the conduct of the two informations or of the decision by the Director to discontinue those proceedings. On that basis, it seems to me that the plaintiff’s claim that this part of the magistrate’s decision should be quashed is hopeless. The magistrate was clearly correct in making an order striking out both informations.”

55 As regard what was said by Kirby and Callinan JJ in their joint judgment in Gerlach , I note that Gerlach was concerned with the power of a District Court judge to make an order dispensing with a jury in an action in the District Court. The joint judgment of Kirby and Callinan JJ was a dissenting judgment. Their Honours were concerned with the exercise, not of a prosecutional discretion but of a judicial discretion, that is a discretion conferred on a judicial officer. It is true that their Honours stated some broad general propositions in paras 69 and 70 of their judgment but neither in those paragraphs nor elsewhere in the joint judgment was there any consideration of whether prosecutorial discretions are to be regarded as falling in a special category.

56 In my opinion, the Director of Public Prosecutions is a prosecuting authority and the power of the Director of Public Prosecutions under s 9(1) of the Director of Public Prosecutions Act to terminate a prosecution which has been instituted by a person other than the Director and the power of the Director of Public Prosecutions under s 9(4)(b) of the Act to decline to proceed further in a prosecution which he has taken over are each powers falling within the discretionary powers of the Director as a prosecuting authority and decisions made by the Director of Public Prosecutions in the exercise of those powers are insusceptible of judicial review by the courts.

57 It is unnecessary for me to deal with the subsidiary argument advanced by counsel for the Director of Public Prosecutions.

58 In my opinion, this is an appropriate case for the Court to exercise its jurisdiction under Pt 13 r 5 of the Supreme Court Rules 1970. I order that the plaintiff’s summons and notice of motion be dismissed. I order that the plaintiff pay the defendant’s costs of these proceedings, including the costs of this application.


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