Harkness v Banks
[2023] VSC 588
•4 October 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 03122
| ZENAAN HARKNESS | Plaintiff |
| v | |
| BENJAMIN BANKS | First Defendant |
| and | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Second Defendant |
| and | |
| MAGISTRATES’ COURT OF VICTORIA | Third Defendant |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 September 2023 |
DATE OF JUDGMENT: | 4 October 2023 |
CASE MAY BE CITED AS: | Harkness v Banks |
MEDIUM NEUTRAL CITATION: | [2023] VSC 588 |
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PRACTICE AND PROCEDURE — Director of Public Prosecutions took over private prosecution commenced by plaintiff and withdrew charges — Plaintiff seeking judicial review of decision to withdraw charges — Director contends prosecutorial decision to withdraw charges not amenable to judicial review — Whether proceeding involves a constitutional matter of which notice must be given under Judiciary Act 1903 (Cth), s 78B — Supreme Court of Victoria’s constitutionally-protected supervisory jurisdiction — Trial of proceeding adjourned to allow plaintiff to give notice to Attorneys-General — Public Prosecutions Act 1994 (Vic), s 22(1)(b)(ii); Judiciary Act 1903 (Cth), s 78B.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the First Defendant | Mr S Bunce | Gallant Law |
| For the Second Defendant | Mr D Glynn | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Third Defendant | No appearance |
HER HONOUR:
On 7 October 2021, Zenaan Harkness filed a charge-sheet in the Magistrates’ Court of Victoria at Heidelberg, charging Benjamin Banks with a number of criminal offences, including making a threat to inflict serious injury, extortion, blackmail, theft, perjury, and making a false report to police. Mr Harkness contends that s 6(1)(a) of the Criminal Procedure Act 2009 (Vic) permits him to commence a private criminal prosecution in this way.
A registrar of the Magistrates’ Court promptly provided a copy of the charge-sheet and the accompanying summons to the Office of Public Prosecutions (OPP). On 11 October 2021, the OPP wrote to Mr Harkness, advising that the Director of Public Prosecutions has a discretion under s 22(1)(b)(ii) of the Public Prosecutions Act 1994 (Vic) to take over a private prosecution, and that in order to exercise that discretion the Director would have to make an assessment of whether there were reasonable prospects of a conviction against Mr Banks. The letter requested Mr Harkness to provide the OPP with copies of any sworn statements, documents, transcripts, photographs and any other evidence he intended to rely on to prove the charges. The OPP made three follow-up requests between November 2021 and May 2022.
On 23 May 2022, Mr Harkness sent an email to the OPP attaching a ‘preliminary partial brief of evidence’. The OPP solicitor responded requesting the full brief of evidence by 27 May 2022 and noted that he would be seeking the Director’s instructions after that date. On 3 June 2022, the OPP wrote to Mr Harkness as follows:
PRIVATE PROSECUTION OF BENJAMIN (BENNY) BANKS
We refer to our previous correspondence regarding this matter.
In that correspondence, we informed you that the Director of Public Prosecutions (the Director) has the power to take over a private prosecution pursuant to s 22(1)(b)(ii) of the Public Prosecutions Act 1994.
The Director has considered the material you provided by email on 23 May 2022.
The Director has decided, in accordance with paragraph 59 of the Director’s Policy, that there is no reasonable prospect of conviction. Accordingly, at the committal case conference on 16 June 2022, counsel appearing on behalf of the Director will take over this prosecution pursuant to s 22(1)(b)(ii) of the Public Prosecutions Act 1994 and withdraw all the charges.
A solicitor from the OPP duly appeared at the committal case conference on 16 June 2022. She informed the magistrate that she was instructed to take over the prosecution pursuant to s 22(1)(b)(ii) of the Public Prosecutions Act, and to withdraw all the charges. The magistrate immediately struck out all 13 charges on the basis that they had been withdrawn. Mr Harkness, who was appearing by telephone, said that he was the original informant and outlined some of the reasons why he had commenced the prosecution against Mr Banks. The magistrate explained that, because the charges had been withdrawn, there had been no finding as to their merits, and encouraged Mr Harkness to raise any ongoing safety concerns with the police.
In this proceeding, Mr Harkness seeks judicial review of the Director’s decision to withdraw the charges against Mr Banks. He seeks orders setting aside the orders of the Magistrates’ Court made on 16 June 2022, or alternatively an order requiring the Director to continue the prosecution.
In written submissions dated 5 July 2023, the Director argued that her decision to withdraw the charges was not amenable to judicial review. She cited Maxwell v The Queen,[1] a High Court authority to the effect that a prosecutorial decision to withdraw charges or discontinue a prosecution is not subject to judicial review,[2] and two decisions of this Court in which that principle had been applied.[3]
[1](1996) 184 CLR 501 (Maxwell).
[2]Maxwell, 534 (Gaudron and Gummow JJ).
[3]Stefanovski v Magistrates’ Court of Victoria [2004] VSC 313, [13]; Walsh v DPP [2005] VSC 469, [64].
Mr Harkness, who is self-represented, filed written submissions in reply dated 27 August 2023, in which he argued that the effect of these authorities is that the Director is unaccountable and unreviewable. He described this as a path to tyranny and despotism, and contrary to the rule of law. He also submitted that the argument raised a matter involving the Constitution or its interpretation, within the meaning of s 78B of the Judiciary Act 1903 (Cth).
Mr Harkness subsequently applied by summons for orders vacating the trial date, to enable him to serve notice of this constitutional matter on the Attorneys-General of the Commonwealth and the States, as required by s 78B(1) of the Judiciary Act (s 78B notices). The summons was made returnable before me on 28 September 2023, on the same day the proceeding was listed for trial.
In advance of the hearing, Mr Harkness provided the Court and the other parties with a draft notice of constitutional matter, in which he attempted to formulate the constitutional question in several different ways. At the commencement of the hearing on 28 September 2023, I heard argument from Mr Harkness and from counsel for the Director as to whether the proceeding involves a constitutional matter.
After hearing that argument, I was persuaded that the proceeding does involve a constitutional matter, related to whether a decision of the Director to withdraw criminal charges is amenable to judicial review. I indicated that I would provide short written reasons for my conclusion, in which I would formulate the question that is to be the subject of s 78B notices, and give directions for the filing and service of written submissions in relation to that question. These are those reasons.
The constitutional matter that I consider is raised in this proceeding is:
Does the constitutionally-protected supervisory jurisdiction of the Supreme Court of Victoria extend to reviewing for jurisdictional error a decision of the Director of Public Prosecutions to withdraw criminal charges in a proceeding taken over by the Director under s 22(1)(b)(ii) of the Public Prosecutions Act 1994 (Vic)?
In this case, the Director relies on longstanding authority to the effect that courts do not involve themselves in prosecutorial decisions. She relied on the High Court’s decision in Maxwell, a case in which the trial judge had refused to accept a plea of guilty to a lesser offence, where the prosecution had accepted that the accused had diminished responsibility. The High Court held, by a majority, that the trial judge had no power to reject the plea.
Justices Dawson and McHugh said that Australian courts ‘do not purport to exercise control over the institution or continuation of criminal proceedings, save where it is necessary to do so to prevent an abuse of process or to ensure a fair trial’.[4] Justice Toohey took a different view, holding that the trial judge had a power to reject the lesser plea, to be exercised where the interests of justice require.[5]
[4]Maxwell, 512 (Dawson and McHugh JJ).
[5]Maxwell, 525–6 (Toohey J).
Justices Gaudron and Gummow took the most expansive view of the question, holding:[6]
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 to 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 States and Territories and in the Commonwealth. Similarly, it may pay insufficient regard to the fact that some discretions are conferred by statute, such as that conferred on a prosecutor by s 394A of the Act.
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, 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.
A decision by a prosecutor to accept a plea to a lesser charge, as permitted by s 394A of the Act, is a decision not to proceed, or, more precisely, not to present evidence on the more serious charge in the indictment and, at the same time, a decision as to the charge which is to proceed. It is insusceptible of judicial review. …
[6]Maxwell, 534–5 (Gaudron and Gummow JJ) (citations omitted).
The Director relies on this passage as authority for the proposition that her decision to withdraw the charges against Mr Banks is not susceptible to judicial review. However, it is noteworthy that Maxwell concerned the correctness of a decision of the trial judge in a criminal proceeding, and was not directly concerned with the jurisdiction of the Supreme Court of New South Wales to supervise the exercise of State executive power. The same observation may be made about the authorities referred to by the majority in Maxwell, such as Barton v The Queen,[7] Jago v District Court (NSW),[8] Williams v Spautz,[9] and Ridgeway v The Queen.[10]
[7](1980) 147 CLR 75.
[8](1989) 168 CLR 23.
[9](1992) 174 CLR 509.
[10](1995) 184 CLR 19.
Separately, the High Court has developed a significant body of jurisprudence concerning Chapter III of the Constitution. The judgment in Kirk v Industrial Court (NSW)[11] was a significant step in this development. In that case, the High Court held that it is a requirement of Chapter III that there be a body fitting the description of ‘the Supreme Court of a State’, and that it is beyond the legislative power of a State to alter the constitution or character of its Supreme Court so that it no longer meets that constitutional description.[12] As the plurality explained:[13]
The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts. And because, “with such exceptions and subject to such regulations as the Parliament prescribes”, s 73 of the Constitution gives this Court appellate jurisdiction to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Courts, the exercise of that supervisory jurisdiction is ultimately subject to the superintendence of this Court as the “Federal Supreme Court” in which s 71 of the Constitution vests the judicial power of the Commonwealth.
There is but one common law of Australia. The supervisory jurisdiction exercised by the State Supreme Courts by the grant of prerogative relief or orders in the nature of that relief is governed in fundamental respects by principles established as part of the common law of Australia. That is, the supervisory jurisdiction exercised by the State Supreme Courts is exercised according to principles that in the end are set by this Court. To deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than that Court would be to create islands of power immune from supervision and restraint. It would permit what Jaffe described as the development of “distorted positions”. And as already demonstrated, it would remove from the relevant State Supreme Court one of its defining characteristics.
[11](2010) 239 CLR 531 (Kirk).
[12]Kirk, [96] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), [113] (Heydon J).
[13]Kirk, [98]–[99] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (citations omitted).
It is not immediately obvious to me how — or whether — the passage from the judgment of Gaudron and Gummow JJ in Maxwell above is compatible with the constitutionally-protected jurisdiction of the State Supreme Courts to supervise the exercise of executive power and to grant relief on account of jurisdictional error. The Director’s position in this proceeding is simply that a prosecutorial decision to withdraw charges is not amenable to judicial review. That position does not sit easily with the principle that a State legislature does not have power ‘to create islands of power immune from supervision and restraint’.[14]
[14]Kirk, [99] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
In Likiardopoulos v The Queen,[15] French CJ expressed the following reservation about the proposition that prosecutorial discretions are not subject to judicial review:[16]
The general unavailability of judicial review in respect of the exercise of prosecutorial discretions rests upon a number of important considerations. One of those considerations, adverted to in the joint judgment, is the importance of maintaining the reality and perception of the impartiality of the judicial process. A related consideration is the importance of maintaining the separation of the executive power in relation to prosecutorial decisions and the judicial power to hear and determine criminal proceedings. A further consideration is the width of prosecutorial discretions generally and, related to that width, the variety of factors which may legitimately inform the exercise of those discretions. Those factors include policy and public interest considerations which are not susceptible to judicial review, as it is neither within the constitutional function nor the practical competence of the courts to assess their merits. Moreover, as their Honours point out, trial judges have available to them sanctions to enforce well-established standards of prosecutorial fairness and to prevent abuses of process.
The above considerations, reflected in a number of decisions of this Court referred to in the joint judgment of Gaudron and Gummow JJ in Maxwell, support the proposition that in a practical sense prosecutorial decisions are for the most part insusceptible of judicial review. But as Gaudron and Gummow JJ also pointed out, the approach of earlier authorities which treated such decisions as unreviewable because they were seen as part of the prerogative of the Crown “may not pay sufficient regard to the statutory office of Director of Public Prosecutions which now exists in all States and Territories and in the Commonwealth.” Further as their Honours observed “it may pay insufficient regard to the fact that some discretions are conferred by statute”.
The statutory character of prosecutorial decision-making in Australia today does not lessen the significance of the impediments to judicial review of such decisions, which are created by the constitutional and practical considerations referred to above. However the existence of the jurisdiction conferred upon this Court by s 75(v) of the Constitution in relation to jurisdictional error by Commonwealth officers and the constitutionally-protected supervisory role of the Supreme Courts of the States raise the question whether there is any statutory power or discretion of which it can be said that, as a matter of principle, it is insusceptible of judicial review. That question was not argued in this case and does not need to be answered in order to decide this case. It involves a question arising under the Constitution. I would not wish my agreement with the reasons given in the joint judgment to be taken as acceptance of a proposition that the exercise of a statutory power or discretion by a prosecutor is immune from judicial review for jurisdictional error, however limited the scope of such review may be in practice.
[15](2012) 247 CLR 265 (Likiardopoulos).
[16]Likiardopoulos, [2]–[4] (French CJ) (citations omitted).
It appears to me that the question articulated by French CJ in Likiardopoulos arises in this case.[17] Mr Harkness should therefore give notice of a constitutional matter as required by s 78B(1) of the Judiciary Act.
[17]Cf Kyriazis v Detective Senior Sergeant Peter Leo Kos [2022] VSC 569, [54].
I will make the following directions for the future conduct of the proceeding:
1. By 3 November 2023, the plaintiff is to file and serve notice of a constitutional matter in accordance with s 78B(1) of the Judiciary Act 1903 (Cth), to be confined to the following constitutional question:
Does the constitutionally-protected supervisory jurisdiction of the Supreme Court of Victoria extend to reviewing for jurisdictional error a decision of the Director of Public Prosecutions to withdraw criminal charges in a proceeding taken over by the Director under s 22(1)(b)(ii) of the Public Prosecutions Act 1994 (Vic)?
2. By 3 November 2023, the plaintiff is to file and serve his written submissions in relation to the constitutional question.
3. The plaintiff is to serve the notice referred to in Order 1 on the Attorneys-General of the Commonwealth and the States together with:
(a) a copy of these Orders;
(b) the Court’s reasons for decision in Harkness v Banks [2023] VSC 588; and
(c) the plaintiff’s written submissions in relation to the constitutional question.
4. By 1 December 2023, the second defendant and any Attorney-General who has intervened in the proceeding is to file and serve written submissions in relation to the constitutional question.
5. By 15 December 2023, the plaintiff is to file and serve any written submissions in reply in relation to the constitutional question.
6. The trial of the proceeding is adjourned to a date to be fixed.
If necessary, I will list the matter for further hearing after I have considered the written submissions filed in accordance with these directions. In the meantime, the parties have liberty to apply.
I will reserve the costs of the hearing on 28 September 2023.
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