Harkness v Banks (No 2)

Case [2024] VSC 709


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:

24 June 2024

DATE OF JUDGMENT:

18 November 2024

CASE MAY BE CITED AS:

Harkness v Banks (No 2)

MEDIUM NEUTRAL CITATION:

[2024] VSC 709 (First Revision 19 November 2024: n 71)

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ADMINISTRATIVE LAW — Judicial review — 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 — Where proceeding involves a constitutional matter of which notice has been given under Judiciary Act 1903 (Cth) s 78B — Friends of the Court appointed as contradictor — Held decision insusceptible of judicial review.

CONSTITUTIONAL LAW — The judiciary — Supervisory jurisdiction of State Supreme Courts — Supervision of the exercise of executive power for jurisdictional error — ‘Principle of unreviewability’ — Whether Supreme Court of Victoria’s supervisory jurisdiction extended to judicial review of prosecutorial decision to withdraw criminal charges — Held that it did not — Public Prosecutions Act 1994 (Vic) s 22(1)(b)(ii) — Judiciary Act 1903 (Cth) s 78B(1) — Constitution Act 1975 (Vic) Part IIIA — Maxwell v The Queen (1996) 184 CLR 501 — Kirk v Industrial Court (NSW) (2010) 239 CLR 531.

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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 A Pound SC, Solicitor-General for Victoria, with
Ms K Brown and
Ms J Vogan
Abbey Hogan, Solicitor for Public Prosecutions
For the Third Defendant No appearance
Friends of the Court Ms F Gordon KC with
Mr S Rajanayagam and
Ms M Jackson

HER HONOUR:

  1. In June 2022, the Director of Public Prosecutions decided to take over a private prosecution commenced by Zenaan Harkness against Benjamin Banks in the Magistrates’ Court of Victoria.  At a committal case conference on 16 June 2022, the Director was represented by a solicitor from the Office of Public Prosecutions, who advised the magistrate that she was instructed to withdraw all of the charges.  The magistrate then struck out the charges on the basis that they had been withdrawn.

  1. 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 or recommence the prosecution.  The Director contends that the decision is not amenable to judicial review, relying on the High Court authority of Maxwell v The Queen,[1] and two decisions of this Court.[2]

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Harkness v Banks (No 2) [2024] VSC 709
Case
[2024] VSC 709
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CaseChat Overview and Summary

The plaintiff, Harkness, sought judicial review of the decision by the Director of Public Prosecutions to withdraw charges in a criminal matter that Harkness had originally commenced as a private prosecution. The case was heard in the Supreme Court of Victoria. Harkness argued that the decision to withdraw the charges was flawed and should be reviewed by the court. The Director contended that prosecutorial decisions, such as withdrawing charges, were not subject to judicial review.

The central legal issue was whether the Supreme Court of Victoria had the jurisdiction to review the decision of the Director of Public Prosecutions to withdraw the charges. The court examined the relevant statutes, including the Public Prosecutions Act 1994 (Vic) and the Judiciary Act 1903 (Cth), as well as the constitutional framework governing the separation of powers and the supervisory jurisdiction of the courts. The court also considered relevant case law, including Maxwell v The Queen and Kirk v Industrial Court (NSW).

The Supreme Court of Victoria held that the decision of the Director of Public Prosecutions was not subject to judicial review. The court found that the decision was a prosecutorial one and that the principle of unreviewability applied. This principle prevents the courts from reviewing decisions made by the executive branch in the course of exercising its powers. The court further held that the supervisory jurisdiction of the Supreme Court did not extend to reviewing the Director’s decision to withdraw the charges. The court relied on the constitutional separation of powers and the statutory framework, which did not provide for such review.

The court dismissed Harkness’s application for judicial review. The decision to withdraw the charges by the Director of Public Prosecutions was final and not subject to court scrutiny. The court did not grant any orders in favour of the plaintiff.

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